Bazzini v. Garrant
| Decision Date | 15 October 1982 |
| Citation | 54 NY2d 207,116 Misc.2d 119,455 N.Y.S.2d 77 |
| Court | New York District Court |
| Parties | , 34 UCC Rep.Serv. 1550 Debra BAZZINI, Plaintiff, v. Lee GARRANT & Elegant Look etc., d/b/a Sexy Sadie's Exotic Bird House, Defendants. |
DECISION AFTER TRIAL
This is a sad tale (or is it tail) of the noble, but late, toco toucan bird, (hereinafter Bird), which the plaintiff, Debra Bazzini, purchased from the defendants doing business as Sexy Sadie's Exotic Bird House. For Bird, a youthful creature of but 4 months, the plaintiff paid the not insubstantial sum of $1200.
Upon the sale of Bird the defendants provided the plaintiff a receipt upon which was stamped in bold red print: An oral modification of this disclaimer was granted to the extent that the plaintiff was permitted to have Bird examined within three days of the sale. That examination apparently found Bird free of any fatal malady.
Tragically, Bird's future with Mrs. Bazzini proved to be quite limited. Within two weeks after his physical, Bird suffered a seizure. (There was no evidence of fowl play.) The plaintiff contacted the veterinarian who advised her to coax Bird back to health by having him sip Gatorade. Like a champion, Bird seemed to recover. But this recovery enjoyed only the reign of a lame duck politician. Seven days later Bird was dead.
Upon the instructions of the veterinarian, the corpse of the once proud animal was stored in the plaintiff's freezer. Bird's cold, dead body was then taken to the veterinarian for autopsy.
A letter from the veterinarian indicates that the cause of Bird's demise could not be definitively established. However, the final paragraph of the letter states:
Using the facts available it would appear the Toucan had a metabolic problem due to congenital defect, access to toxins or both. This type of problem is of the bird itself, of a chronic nature, probably the entire, brief, life of the individual.
In life Bird was a bird--an animal of feelings, of flesh and blood and feathers. It is one of the sad aspects of the law that the heat and passion of life so often translate to cold, unfeeling words upon a page. This is such an instance for in death, notwithstanding his memory, Bird is a chattel.
Bird's experience is not novel in New York law. Tarulli v. Birds in Paradise, 99 Misc.2d 1054, 417 N.Y.S.2d 854 is a case with some similarities. That bird was a Moluccan Cockatoo. Despite a warning and disclaimer similar to the one provided by the defendants to the plaintiff here, the purchaser of the Cockatoo did not have it examined. The bird died approximately one month later. In determining the question of liability the court applied the provisions of the Uniform Commercial Code.
The court accepted the contention that birds constitute "goods" within the contemplation of the Code and that the defendant was a merchant as defined in UCC 2-104(1). Those findings are valid as applied in this case as well. And, as in that case the relevant provisions of the UCC are sections 2-314 () and 2-316(2) and (3) (providing for the exclusion or modification of the warranty.)
UCC 2-316(2) is not applicable since to exclude the warranty of merchantability pursuant to that section there must be mention of the word merchantability. This may seem a harsh rule to the defendants but as all entrepreneurs in the tropical bird business realize, it is a jungle out there.
UCC 2-316(3)(b) was considered by the court in Tarulli, supra. The section provides:
when the buyer before entering into the contract has examined goods or the sample or model as fully as he desired or has refused to examine the goods there is no...
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