Smith v A World of Pups, Inc.

[*1] Smith v A World of Pups, Inc. 2010 NY Slip Op 51081(U) [27 Misc 3d 1236(A)] Decided on June 15, 2010 Civil Court Of The City Of New York, Kings County Ash, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 15, 2010
Civil Court of the City of New York, Kings County

Stacey M. Smith, Plaintiff,

against

A World of Pups, Inc., Defendant.



6768/09



Plaintiff: Stacy Smith, 693 Franklin Avenue #2-F, Brooklyn, NY 11238 (646) 246-5416.

Defendant: A World of Pups, by Gary Nudelman, 540 86th Street, Brooklyn, NY 11209

(718) 541-6536 (718) 238-7387

Sylvia G. Ash, J.

This is a Small Claims action for breach of contract. Both parties appeared pro se. A trial was held before this Court, and after considering the testimony and evidence submitted, the Court makes the following findings of fact and conclusions of law.

On October 15, 2009, Plaintiff, Stacy Smith, went to Defendant's store, A World of Pups, Inc., to purchase a small dog for her children. After looking at several dogs, she was shown a seven (7) month old male Yorkshire Terrier (Yorkie). The Yorkie's date of birth was March 11, 2009 and had been in Defendant's store for sale since May, 20, 2009. Plaintiff asked Defendant's sales representative why the dog was in the store so long and had not been sold. She was told that no one wanted to pay the purchase price of $1,300.00. Plaintiff stated that, although she initially wanted a female dog, she decided to purchase the male Yorkie because she fell in love with the dog and thought she could possibly use it for breeding purposes. The next day, Plaintiff returned to Defendant's store to finalize the purchase of the Yorkie. She was given the necessary papers for the transaction and a Pet Health Warranty Contract which listed the dog as having no pre-existing condition.

As per the terms of the contract, On October 20, 2009, Plaintiff took the dog to Defendant's Veterinarian for a check-up and was informed that the dog had no visible or palpable testicles and was a neutered dog. Plaintiff immediately called Defendant's store and was assured by one of its workers that the dog they sold her did have testicles which probably had not descended. She was told that she would receive a return call after they reviewed their paper work. Plaintiff did not receive a return call from Defendant until several days later. Plaintiff then called the Breeder, who informed her that according to their paperwork, the dog they sold the Defendant had testicles, and that she was given the wrong dog. On October 24, 2009, Plaintiff took the dog to ASPCA who [*2]confirmed that the dog in her possession did not match the paperwork the Defendant had given her. Plaintiff stated that based on this information, she was advised to have the dog receive all necessary vaccinations in order to protect the dog and her children while the dog was still in her possession. Plaintiff further stated that after several conversations, Defendant admitted that Plaintiff was given the wrong dog. She was told to bring the dog back and that she would be given the correct dog and a full refund of the monies she spent to have the dog examined and vaccinated in the sum of $302.00. However, when Plaintiff went to return the dog, Defendant informed her that they would exchange the dog, but that they would not reimburse her for her out of pocket vaccination expenses.

Defendant through its witnesses, a store representative, and its President, testified at trial that Plaintiff received the right dog but the wrong paper work; that there was no discussions of the sex of the dog; that they were not required to inform their customers whether a dog had been neutered, and that there is no difference in the value of a neutered dog and a dog that had not been neutered. However, on cross-examination, Defendant's President, admitted that there were two Yorkshire Terriers in their store with the same date of birth and that Plaintiff was mistakenly given the wrong dog. Defendant's President further stated that they were willing to exchange the dog but they were not willing to reimburse her for the vaccination costs because the dog had already received all its shots, plus the contract of sale did not provide for reimbursement of vaccination expenses.

This case come within the purview of Article 2 of the Uniform Commercial Code (UCC), (see Cahill v. Blume, 8 Misc 3d 1004(A)). Under the UCC, dogs are considered "goods" and pet stores are "merchants" (UCC §2-105 ). If a merchant failed to deliver the correct goods, such failure would result in a non-conforming delivery under Article 2, which constitutes a breach of contract.

The Court finds that it was clear to both parties that the dog which Plaintiff purchased was not the dog for which she had bargained. Plaintiff and Defendant were both surprised to learn that the dog Plaintiff purchased had been neutered. Defendant later acknowledged that Plaintiff was given the wrong dog. Therefore, it is undisputed that pursuant to UCC §2-105 Defendant breached the contract by failing to deliver the correct dog to the Plaintiff resulting in a non-conforming delivery. Pursuant to UCC §2-601, where there is a breach because the goods fail to conform to the contract, the buyer may reject the goods. However, UCC §2-508 provides that the seller has a right to cure the non-conforming delivery by making a conforming delivery. To effect a cure, the seller must communicate an unconditional intention to cure within a reasonable time. The seller must also compensate the buyer for all the buyer's reasonable expenses caused by the breach. Here, Defendant did make an offer to cure by agreeing to exchange the dog and to compensate Plaintiff for her out of pocket vaccination expenses. However, the agreement fell apart when Defendant subsequently refused to reimburse Plaintiff for her expenses.

The law is clear that the seller must compensate the buyer for all the buyer's reasonable expenses caused by the seller's breach of contract. Where delivery of the defective goods has caused the buyer to incur incidental expenses, an offer to cure by replacement has been deemed ineffective if no offer of reimbursement is made (see Moulden & Sons, Inc., v. Osaka Landscaping & Nursery, Inc., 21 Wash. App. 194, 584 P.2d 968, 25 U.C.C. Rep. Serv. 454 (Div.2 1978). UCC §2-715 (1) provides guidance concerning the typical kinds of expenses that a buyer is entitled to be [*3]reimbursed where the breach of contract is nonconformity of goods sold. Expenses incurred in inspection, receipt, transportation and care and custody of the goods are among those listed as illustrative of expenses which are reasonable and recoverable. Therefore, the issue before this Court is whether Plaintiff's expenses were reasonable.

It is undisputed that as soon as Plaintiff discovered that she was given the wrong dog, she promptly notified the Defendant. However, the Defendant was not particularly diligent in trying to solve the problem, in fact, both parties testified that communications between the parties were very testy and contentious. Given the fact that Plaintiff received the wrong dog, the wrong paper work, and the breakdown in communications between the parties, she was advised to have the dog vaccinated as a precautionary safety method until the matter was resolved. The Court finds that under these circumstances, the vaccination expenses were reasonable and that the Defendant was at fault in failing to effectuate the cure, thus liable for the breach of contract. Therefore, Plaintiff is entitled to be reimbursed for the vaccination expenses in the sum of $302.00.

Plaintiff is also seeking punitive damages in the sum of $500.00. Although punitive damages are usually awarded in cases of assault and defamation on basis of malice of wrongdoer, they may also be awarded in other civil actions where Defendant's conduct has been wanton or reckless and without regard to rights of Plaintiff (see Manekas v. Allied Discount Co., 6 Misc 2d 1079, 166 N.Y.S.2d 366). New York City Civil Court Act §1804 authorizes this Court to conduct hearings upon small claims in such manner as to do substantial justice between the parties according to the rules of substantive law.

Here, although Plaintiff did not receive the dog for which she had bargained, she is not seeking to return the dog for a refund of the purchase price. She stated that Defendant was aware that she was looking to purchase a dog as a family pet and that she did not want a dog that was neutered. Notwithstanding this fact, Plaintiff states that both she and her children have now fallen in love with the dog and that the dog has become part of her family. Plaintiff is seeking a partial refund of $500.00 as punitive damages arguing that she would not have paid $1300.00 for a neutered dog and that the value of the dog has been diminished because it is neutered. Notwithstanding Defendant's testimony that there is no difference in the value of a dog that has been neutered, the Court notes that neither party presented any expert testimony or evidence presented at trial regarding the value of a neutered dog as opposed to a dog not neutered.

This Court is mindful "... that it is no small matter for an owner to give up a household pet" (O'Rourke v. American Kennels, 7 Misc 3d 1018(A)). There are pet owners who will argue that owning a pet is tantamount to being a parent to a young child. There are pet owners who place a high premium on the love and affection they receive from their pets. There are even pet owners who have opted not to have children, maybe because of the lifelong financial obligation; the tumultuous terrible teenage years; the emotional roller coaster from infancy to adulthood, or maybe simply because pets are easier to potty train, and make no demands other than to be fed and walked daily. Because of the love, affection and strong bond that pet owners have developed with their pets, there have been many pet owners who have left millions of dollars in their wills for the future care and continued comfort of their pets. A non pet owner may question the rationale and even sanity of a pet owner who leaves a million dollar trust fund for a pet, however, when it comes to [*4]affections of the heart, one can argue that love knows no boundaries or financial limitations.

At trial, Plaintiff emphasized, tearfully and emotionally, that her children have bonded with the dog and would be devastated if the dog were to be removed from her home. As such, guided by principles of substantial justice, this Court finds that Defendant's actions in given Plaintiff the wrong dog and refusing to effectuate the cure was wanton and reckless. Therefore, Plaintiff is awarded punitive damages in the sum of $250.00.

Accordingly, a final judgment is awarded to the Plaintiff for the total sum of $552.00 plus costs and interests from October 15, 2009. Plaintiff shall retain possession of the dog.

DATED: June 15, 2010

_____________________________

SYLVIA G. ASH, J.C.C.