Malul v. CAPITAL CABINETS

• Decision Date: 22 March 2002
• Citation: 740 N.Y.S.2d 828,191 Misc.2d 399
• Parties: SHALOM MALUL, Plaintiff,<BR>v.<BR>CAPITAL CABINETS, INC., et al., Defendants.
• Court: New York Civil Court

191 Misc.2d 399

740 N.Y.S.2d 828

SHALOM MALUL, Plaintiff,

v.CAPITAL CABINETS, INC., et al., Defendants.

March 22, 2002.

Sol Mermelstein for defendants.

Shalom Malul, plaintiff pro se.

OPINION OF THE COURT

JACK M. BATTAGLIA, J.

Shalom Malul contracted with Capital Cabinets, Inc. for new kitchen cabinets. Dissatisfied with the purchase, Mr. Malul has sued Capital and two individuals associated with Capital, David Hershkowitz and Hona Hershkowitz. At the January 15, 2002 trial, Mr. Malul appeared and testified. Capital and the individual defendants were represented by Sol Mermelstein, Esq. Sidney Friedman and Patrick Gangitano testified on behalf of the defendants.

At the conclusion of plaintiff's case, defendants David Hershkowitz and Hona Hershkowitz moved for dismissal. The court granted the motion, seeing no basis in plaintiff's evidence for any liability of the individual defendants.

In a writing dated August 11, 1999, the parties agreed to the purchase and sale of cabinets manufactured by Holiday Kitchens for a total purchase price of $10,900. In its advertising, Capital says that it is the "exclusive authorized distributor" of Holiday Kitchens. The writing included a drawing showing how the cabinets would be arranged in plaintiff's kitchen, together with appliances, and contained the dimensions and other descriptive information about the cabinets. Of the total purchase price, $3,000 was paid on signing of the contract, and $7,900 was paid on December 30, 1999 upon delivery of the cabinets by the manufacturer.

The contract for the cabinets did not provide for installation. On Capital's recommendation, Mr. Malul hired Barry Burger to install the cabinets and paid him $1,600 to do so. Despite Mr. Burger's role in the cabinet project, and the significance of installation to some of the problems that developed, he did not testify at trial. Since Mr. Burger has a relationship with both Capital and Mr. Malul, and neither party offered any explanation for his failure to testify, the court makes no negative inference because of his absence.

The installation of the cabinets began in January 2000 and was completed, to the extent possible, in March. Not all of the pieces had been delivered, but Capital committed to get them. Meanwhile, on April 3, Capital and Mr. Malul entered into a second contract for additional cabinets at the total price of $2,300. Sometime in April, the additional cabinets were delivered and installed by Burger.

According to Mr. Malul, within a couple of weeks, the doors on several of the cabinets began to "melt," i.e., the laminate began to "pull" from the substrate. As later explained by Mr. Gangitano, the doors are thermafoil coated, produced by applying a heated laminate over medium density fiberboard. (A General Technical Information sheet distributed by Holiday Kitchens describes the doors as "foil-wrapped.") Several of the doors were replaced by Capital a number of times, but the problem recurred with the replacement doors. Mr. Malul testified that 6 of the total of 30 doors evidenced the problem.

In addition to the "melting" doors, Mr. Malul testified to other problems: three doors are not of the design ordered, and, although they have been replaced twice, they are still wrong; panels for the refrigerator and dishwasher were the wrong size, and have yet to be replaced; molding is missing in some places, and putty used instead of formica in others; doors and drawers are crooked; and the oven and refrigerator were installed in such a manner that it is difficult to open the refrigerator. Mr. Malul produced a "melted" door and photographs illustrating most of these problems.

Patrick Gangitano is an independent representative for Holiday Kitchens, having served in that capacity for 10 years. In addition to describing the process, he testified that the cabinet doors were not manufactured by Holiday, but purchased from a supplier. After Mr. Malul's complaints, he inspected Mr. Malul's cabinets, and concluded that the melting phenomenon was due to excessive heat, the result of the doors being placed too close to a heat source, primarily the stove. Although he acknowledged that Mr. Malul's experience was not unique, he asserted that, of the thousands of similar doors sold, "less than a dozen" have this problem.

Mr. Gangitano also produced the General Technical Information sheet distributed by Holiday Kitchens. The sheet contains a "manufacturer's limited warranty" in which the "supplier of Foil Wrapped Doors warrants to the original purchaser that all doors * * * are guaranteed for a period of five (5) years against * * * delamination where proper care and handling is maintained * * * Any product that has been exposed to temperatures over 185° F (85° C) will void the warranty." Although Mr. Gangitano maintains that this would have been sent to Mr. Malul by Holiday, Mr. Malul denies having received it. There is no evidence that Capital received it either.

Indeed, Sidney Friedman, the Capital salesperson who dealt with Mr. Malul, testified that Capital knew nothing about the potential problem with heat until after Mr. Malul's complaints. Before the sale to Mr. Malul, Capital had never sold thermafoil before. Mr. Friedman testified that Mr. Malul gave him the exact model and color information which Mr. Malul had obtained from another seller. Mr. Malul disputes this, saying that he chose the finish and color from catalogues that Mr. Friedman gave him to review. He says that he told Mr. Friedman, "Give me your opinion, I want something good." There is no question that the August 11, 1999 contract designates the thermafoil product and a color number that applies only to that product.

Another significant dispute between Mr. Malul and Mr. Friedman concerns the drawing for the kitchen. Mr. Friedman testified that Mr. Malul appeared with a drawing in hand, and insisted that it be followed. Mr. Malul said that he and Mr. Friedman designed the kitchen together.

As to the specific complaints, Mr. Friedman maintained that he heard no complaint about the placement of the refrigerator and stove until a year and a half later, although the problem could have been solved at installation. Also, the doors and drawers are not crooked; there are only some "hairline" spaces; the panels for the refrigerator and dishwasher must be cut to the dimensions of the particular appliances, which Holiday is willing to do with the manufacturers' specifications. Other problems, he said, were Burger's responsibility.

The contract between Mr. Malul and Capital was for the sale of goods, and, therefore, is governed by article 2 of the Uniform Commercial Code. (UCC 2-102.) Even accepting Mr. Malul's version as to the design of the kitchen, the sale of the cabinets clearly predominated. (Milau Assoc. v North Ave. Dev. Corp., 42 NY2d 482, 486 [1977]; Nickel v Hyster Co., 97 Misc 2d 770, 773 [Sup Ct, Suffolk County 1978].) It also seems clear that Mr. Malul accepted the cabinets. (UCC 2-606 [1] [c].)

Before Mr. Malul can have a remedy, either after revocation of acceptance (UCC 2-608, 2-711), or for breach in regard to accepted goods (UCC 2-714), he must first show that Capital failed to perform according to the contract. Mr. Friedman testified that no oral warranty or representation was made in connection with the transaction, and Mr. Malul did not contradict him. No formal written warranty was produced by Mr. Malul, nor did he contend that he had received one.

Mr. Malul did present a copy of an advertisement by Capital, which he acknowledged to be recent, that states "Holiday Kitchens Protection Guarantee 5/20" and "Custom Cabinetry Built to Last a Lifetime." Neither statement qualifies as an express warranty on behalf of Capital. The first is accompanied in the ad by the Holiday Kitchens logo and the legend "Exclusive Authorized Distributor of Holiday Kitchens." Taken together, the statements seem clearly to refer to some written warranty by Holiday Kitchens. The second is puffing. (UCC 2-313 [2].) In any event, Mr. Malul did not testify to his having seen a similar advertisement prior to the contract, so that it might be deemed a basis of his bargain with Capital. (UCC 2-313 [1]; see Strauss v Long Is. Sports, 60 AD2d 501, 506 [2d Dept 1978]; White and Summers, Uniform Commercial Code, § 9-5, at 353 [5th ed].) He testified that he went to Capital because of his father's relationship with a principal in the company.

An implied warranty of fitness for a particular purpose arises "[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods." (UCC 2-315.) Even accepting Mr. Malul's version as to how the thermafoil product came to be designated in the contract, this warranty would not be implied in this transaction. Mr. Malul's statement that he was relying on Mr. Friedman's opinion for "something good" does not convey any particular purpose. (See White and Summers, supra, § 9-10, at 369.)

An implied warranty of merchantability is implied in a contract for sale of goods, "if the seller is a merchant with respect to goods of that kind." (UCC 2-314 [1]; 2-104 [1].) Even though Capital may not have previously sold a thermafoil product, it was a merchant of cabinets, and that is enough. "Goods to be merchantable must be at least such as * * * are fit for the ordinary purposes for which such goods are used." (UCC 2-314 [2] [c].)

"A specific designation of goods by the buyer does not exclude the seller's obligation that they be fit for the general purposes appropriate to such goods." (UCC 2-314, Comment 3.) On the other hand, "where the buyer gives detailed specifications as to the goods," i.e., "precise and complete specifications," the implied warranty does not apply; it is deemed "displaced by the express warranty that the goods will comply with the specifications." (UCC...