Riley v Cicero

[*1] Riley v Cicero 2009 NY Slip Op 50580(U) [23 Misc 3d 1104(A)] Decided on March 17, 2009 Syracuse City Ct Rosenthal, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 21, 2009; it will not be published in the printed Official Reports.

Decided on March 17, 2009
Syracuse City Ct

Kathryn Riley and Robert Van Epps, Plaintiffs,

against

Petland of Cicero, Defendant.



08/00685SC



APPEARANCES:

For the Plaintiffs:

KATHRYN RILEY, Pro se

ROBERT VAN EPPS, Pro se

7300 Cedar Post Road, Apt. C3

Liverpool, New York 13088

For the Defendant:

JEFFREY FRANKEL, Pro se

PETLAND OF SYRACUSE

The Market Place

5701 East Circle Dr., Suite 104

Cicero, New York 13039

Kate Rosenthal, J.

DECISION

The plaintiffs sued the defendant in Syracuse City Court, small claims division, for $5,000 arising out of plaintiffs' purchase of a puppy from defendant. The case was tried on March 5, 2009 at which time testimony was taken, exhibits were entered into evidence, and decision was reserved.

Upon due deliberation and after having assessed the credibility of the witnesses and having reviewed the various exhibits and upon application of the pertinent law, the court finds that the plaintiffs' claim is granted in the sum of $4,738.23. [*2]

FINDINGS OF FACT

The subject male shih tzu puppy was born on March 7, 2008 and arrived at the defendant Petland store on May 13, 2008. The dog was examined by Heather Danboise, DVM, of the Shop City Animal Hospital on May 14, 2008 and found to be in good condition. The dog was purchased by plaintiffs, and named Chewy, on May 21, 2008 for $1,403.99.

In compliance with defendant's limited warranty, plaintiffs had Chewy examined by a veterinarian on May 22, 2008. The Shop City Animal Hospital, the veterinary care facility referenced in the warranty, examined Chewy and found he had acquired kennel cough. Chewy's condition deteriorated and, on May 27, 2008, he was diagnosed by the Shop City Animal Hospital as having pneumonia. On June 12, 2008 the Shop City Animal Hospital found Chewy was suffering from an ear infection.

Due to Chewy's continuing health issues, plaintiffs took Chewy to Animal Kingdom Veterinary Hospital on June 19, 2008 for examination. The veterinarian, Dr. Gretchen Schlientz, found the following symptoms:

vomiting; constipation; low glucose level; generalized weakness; thinness; and dehydration. Dr. Schlientz declared Chewy was "not acting like a normal puppy" and certified pursuant to General Business Law article 35-D that Chewy was "unfit for purchase." Chewy was kept for treatment until June 20, 2008 when he was transferred to the Veterinary Medical Center of Central New York. Chewy was examined, treated and kept at the latter facility until discharged on June 22, 2008. The dog was found to have "profound neurologic abnormalities" and diagnosed as having suspected liver disease.

Chew continued to receive veterinary treatment on June 24, June 30, July 14, July 18, July 22 and July 28, 2008. Finally, upon veterinary recommendation, Chewy was euthanized on September 9, 2008. The total treatment cost was $3,334.24.

CONCLUSIONS OF LAW

The sale of dogs is regulated by the provisions contained within article 35-D of the General Business Law. A purchaser has a remedy for damages where, within 14 days of purchase, a licensed veterinarian determines and certifies the dog to be "unfit for purchase due to [*3]illness"(General Business Law §753[1]). Although a veterinarian did determine Chewy to be unfit for purchase, such determination was made on June 19, 2008, 29 days after purchase and beyond the 14 day limit of the statute for recovery of damages. The remedy provided by this statute is not exclusive, however, as it expressly states that "[n]othing in this section shall in any way limit the rights or remedies which are otherwise available to a consumer under any other law" (General Business Law §753[5]).

A purchaser may recover damages under the alternative claim of breach of the implied warranty of merchantability pursuant to the Uniform Commercial Code (UCC 2-314; Rossi v. Puppy Boutique, 20 Misc 3d 132A; Budd v. Quinlan, 19 Misc 3d 66). Dogs are "goods" within the meaning of UCC 2-105 and Petland is a "merchant" within the meaning of UCC 2-104(1) (Cahill v. Blume, 8 Misc 3d 1004A; Saxton v. Pets Warehouse, 180 Misc 2d 377). The goods sold by a merchant must be "fit for the ordinary purposes for which such goods are used" (UCC 2-314[2][c]). Plaintiffs' evidence established that the dog sold by Petland was not fit for purchase, that is, Chewy was not a healthy dog. Defendant, therefore, breached its obligation to provide a conforming good. Plaintiffs are entitled to recover as damages "the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable" (UCC 2-714[1]). The court finds plaintiffs' damages to consist of the cost of purchase of Chewy in the sum of $1,403.99 and the cost of veterinarian care and treatment in the sum of $3,334.24.

Accordingly, plaintiffs are awarded judgment against defendant in the sum of $4,738.23 plus disbursements of $20 for a total judgment of $4,758.23.

This constitutes the decision and order of the court.

ENTER

DATED: March 17, 2009__________________________________

Syracuse, New YorkHON. KATE ROSENTHAL

City Court Judge