Lombardo v. Empire Puppies

Decision Date23 February 2016
Docket NumberNo. 2014–2652 K C.,2014–2652 K C.
Citation36 N.Y.S.3d 48 (Table)
PartiesBlanca L. LOMBARDO, Appellant, v. EMPIRE PUPPIES, Respondent.
CourtNew York Supreme Court — Appellate Term

Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered August 7, 2014. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $900.

ORDERED that the judgment is modified by increasing the award in favor of plaintiff to the principal sum of $3,672; as so modified, the judgment is affirmed, without costs.

Plaintiff commenced this action to recover veterinary expenses that she had incurred after she had purchased a puppy from defendant. At a nonjury trial, plaintiff established that she had paid defendant $900 for the puppy and that it had been sick at the time of the sale, resulting in veterinarian expenses totaling $3,672. Following the trial, the Civil Court awarded plaintiff the principal sum of $900 based on General Business Law § 753(1)(c), which limits a recovery to the purchase price of the animal where the purchaser retains the animal. Plaintiff appeals on the ground of inadequacy, claiming that she is entitled to recover all of the veterinary expenses she incurred in treating the dog.

A puppy falls within the definition of “goods” as set forth in UCC 2–105, and defendant was a “merchant” within the meaning of UCC 2–104(1). Since the record demonstrates that the puppy was sick at the time of the sale, plaintiff was entitled to recover damages under a theory of breach of the implied warranty of merchantability (see UCC 2–314 ; 2–714; 2–715; Badillo v. Bob's Tropical Pet Ctr., Inc., 40 Misc.3d 137[A], 2013 N.Y. Slip Op 51386[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Hardenbergh v. Schulder, 25 Misc.3d 141[A], 2009 N.Y. Slip Op 52454[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Rossi v. Puppy Boutique, 20 Misc.3d 132[A], 2008 N.Y. Slip Op 51449[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Budd v. Quinlan, 19 Misc.3d 66 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]; Appell v. Rodriguez, 14 Misc.3d 131[A], 2007 N.Y. Slip Op 50051[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2007]; Saxton v. Pets Warehouse, 180 Misc.2d 377 [App Term, 2d Dept, 9th & 10th Jud Dists 1999] ), and was not limited to pursuing her remedies under General Business Law § 753 (see General Business Law § 753[5] ).

As plaintiff's evidence of veterinary expenses established...

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