Opinion
8372 RCV 2007.
Decided January 7, 2011.
The Law Firm of Duskin Crowe, Staten Island, NY, ATTORNEY FOR DEFENDANT.
Borrell Riso, LLP, Staten Island, NY, ATTORNEY FOR PLAINTIFF.
This cases raises the mundane but infrequently litigated issue of what the term oak wood door means. Plaintiff Anthony Ferraro ("plaintiff" or "Ferraro") contends that defendant Perry's Brick Company ("defendant" or "Perry's Brick") breached the contract when it sold plaintiff a veneer oak door rather than a solid oak door. Since he did not receive what he bargained for — i.e. a solid oak wood door — plaintiff argues that the contract must be rescinded and that defendant must return all monies that he paid.
Facts
Plaintiff initially attempted to proffer himself as an expert in wood. Although he is a high school teacher of graphic design, Ferraro developed a speciality in renovating houses by doing "floors, walls, hardwood floors, doors, anything and everything in the house." (Tr. 5-6). He also was very familiar with veneering. The court finds that while plaintiff has some experience as a carpenter he is not an expert.
Plaintiff wanted to buy an impressive solid oak door to replace his old door. He decided that he wanted a KML door made by Anderson when he saw it advertised in the paper. Ferraro went to Perry's and inquired of Ms. Alicia Dadio ("Alicia" or "Dadio") — the sales person at Perry's — whether Perry's sold the particular door he had seen in the advertisement. Ferraro also specified that he was looking for a "solid oak door" and that he did not want anything else but that. (Tr. 8). Alicia stated that Perry's had that particular KML door entitled "Springline" — depicted in the advertisement.
Alicia testified that once Ferraro mentioned Anderson doors, she retrieved the brochure (defendant's "A") which showed the actual door unit that he wanted. While Ferraro claims that Anderson never showed him any brochures on the door, Dadio claims that she reviewed the brochure with him and he agreed that the page depicting a door that says "Arched" Springline was the one he wanted. Ferraro was adamant that he wanted an Anderson product. Dadio reviewed the various veneers that were offered — she got the measurements and spaces and generated a three page schematic of the door which reflected the dimensions and particulars that Ferraro wanted ("Plaintiff's "1"). The schematic states that the door is "oak," On September 1, 2005, they agreed upon a price of $11,996.03, which plaintiff signed off on and thereupon put a $5000 deposit (see plaintiff's "2", bill of sale). He also chose an expensive and decorative lock which cost $600 at the time of sale. Ferraro emphasized that Alicia never told him that the door he purchased was veneer as opposed to solid wood.
Ferraro stated that based upon his experience, a door that costs $12,000 would be a solid wood door and not a veneer door. He indicated that "solid oak is a very expensive wood" (Tr. 20). Ferraro based this testimony upon his past experience in ordering a fiber glass door which had cost about $7000. Prior to delivery, Ferraro went to Perry's to approve another schematic concerning the installation of the glass into the frame. The door was delivered on or about December 20, 2005.
Plaintiff also stated that Dadio never told him that he was getting a veneer door. However, in response to the question whether she ever told him he was getting a solid oak door, plaintiff responded "She told me it was an oak door." (Tr. 35). Plaintiff added that Ms. Dadio wrote the word "Oak" on the three page drawing of the door (plaintiff's 1).
He stated that had Dadio told him it was a veneer door he would not have bought it, especially for the price of $12,000.
Ferraro admitted on cross examination that the newspaper ad he brought in did not say solid oak; it just said that the door comes in various species of woods. The bill of sale did not state whether the door was solid oak or veneer. Dadio claims that she showed Ferraro a book entitled "KML by Anderson." (Defendant's "A), although Ferraro denied ever seeing this brochure. A door entitled "Springline" included within the group of doors entitled "Arched" appears to be the door drawn in plaintiff's "1". Page 34 of the brochure shows the interior of the door as "engineered timber stiles."
After he discovered that the door was veneer he did independent research and obtained another brochure from the manufacturing company (defendant's "B"). The brochure states that the door is made from the finest grades of natural wood and does not mention that the door is made of engineered wood. Upon questioning from the court, Ferraro admitted that neither the ad nor the brochure he looked at stated that the specific door he ordered from Perry's was solid oak — it merely showed species of wood used for the door, including "high quality oak." (Tr. 73-74).
Dadio stated there was a discussion as to how Anderson makes its door. She claims she told plaintiff that Anderson "has a solid wood door with engineered stiles and rails." (Tr. 9). She reiterated "has stiles and rails with a choice of veneer." She stated that Anderson does not manufacture any door that would be referred to as a solid oak door. The last page of the brochure gives a cutaway as to how the door is manufactured. The cutaway shows a "solid wood door, with the laminating wood core with the veneer." The Court asked: "a solid wood door with . . . ?" to which Dadio replied: "veneer, oak veneer." On redirect, Dadio admitted that to her understanding "this was a solid wood door." (Tr. 11).
Ferraro first learned that the door he purchased was not solid oak when the person he hired to install the door tried to insert the lock or door knob. The door was installed a few weeks after delivery by one Izzy — who worked at Home Depot and who had experience with installing the doors. Izzy did the entire installation and was paid $650. The first time that Ferraro looked at the door was when Izzy took the paper off it. The door came within its frame as one piece but Izzy took the door out of the frame to lessen the weight of installation. Izzy then had to put the door back into the frame. They did not know that the door was veneered until it was installed and they attempted to put the lock in — the hole had already been bored for the lock and "you can actually see where the veneer separate (sic) from the core of the door" (Tr. 58) — there was only 1/8 wood veneer on both sides of the door and it was filled in the inside with a yellowish compound. The veneer could not hold this lock; only a solid oak door could hold it. The door would not hold the lock. It took the installer about day to install the door. Somewhere in the process of installing the door they noticed that the door was veneer.
Ferraro did not look at the door prior to Izzy taking it out of its frame (Tr. 63). He did not take the time to look at the door prior to Izzy's disassembling the frame from the door. Ferraro saw the big gaps between the top of the door and the side of the door and the frame when Izzy reinstalled the door into the frame. (Tr. 66). The leakage problem had nothing to do with the installation since the leakage came out of the middle of the door where the panels were and the panels and molding were not fitted properly. (Tr. 79-80).
Upon discovering that the door was not solid oak, Ferraro went to Perry's around Christmas time or early January and complained to both Alicia and a manager. He asked them to take the door back and stated he was going to complain to American Express. He told Dadio the door was not the one he had ordered. (Tr. 68). He told her he wanted it "rectified". He did not complain about anything else that day. He was very upset and his primary complaint was that the door was not solid oak plus the fact that it had the gaps (Tr: 68-70). When asked again what exactly he complained to Alicia about, Ferraro stated that "the door that I bought, or that you ordered for me, is not an oak door. It's an oak veneer door. I did not pay $12,000 for oak veneer." (Tr. 70).
Perry's did not agree to take the door back but stated they could "fashion" something to look like the lock he had wanted. First, Perry's sent over someone who told him that that the "door itself was not fitting right within the frame." (Tr. 26). The gentleman informed him that the new lock could not be installed because the door would not hold it. In addition to the door not being oak, Ferraro had other problems: the door itself was too short for the frame (space between top of the door and frame on top), and the molding they gave him to install inside his home was too wide for the width of the frame. A subsequent inspection by someone from Perry's revealed that the door was bowed. After not receiving satisfactory answers or repairs on the doors, Ferraro again informed Alicia that he was disappointed with the door, that he wanted "it taken care of and that he spent good money." (Tr. 46-47). Ferraro is still using the door because "I need a door on my home." (Tr. 77).
Black Millwork Co., the manufacturer of the door, received complaints about the door sold to Ferraro. In its job summary, Black Millwork (Plaintiff's 5) reported that Ferraro initially complained about air infiltration issues on January with his new KML door — that one of the panels on the door was experiencing air infiltration and a service site was needed. On July 21, 2006, Ferraro called to complain about the door being too short — he did not finish the inside and it was bowed. Ferraro reported that he had finished the outside but there were still cracks on the outside.
Plaintiff's "6" reveals that Ferraro first complained about the door on January 18, 2006, wherein he stated that there were "air infiltration " issues with one of the panels on the door. He did not mention water leakage at the point. Anderson sent workers to look at the door on March 24, 2006. The "Ferraro job notes" summarizing Anderson's visit state that "the door has been at the residence over four months without being sealed and the panel therefore has become bowed, contrary to instructions given to the homeowner." The underlying notes of March 24, 2006 state that the panel's interior and exterior had not been sealed and only the exterior had been stained. The door also was not finished which would result in cracks in the wood, bowing, etc. The workers also found that the door was not shimmed correctly at the sides and head which is why the bevels were "off." The workers ordered a new wider but received the same size and were unable to close the gap at the top of the door. "Although this was explained to the homeowner he refused to address the issue." Finally, the door was veneer "as are all KML products. The homeowner refuses to accept this."
Ferraro initiated this lawsuit on or about April 10, 2007.
The notes on May 29, 1996 indicate that the workers informed Ferraro that per Anderson policy, the door needed to be finished and go through a one year cycle and the panel would straighten out. Anderson might replace the panel after one year if it did not straighten out, but only if the door was sealed and finished ASAP.
On redirect, Ferraro denied that anyone at Anderson had told him about the steps he should take to avoid the cracking and bowing and shimming of the wood. However, he personally sealed the door with an oil stain. Ferraro also claimed that the shortness of the door and leakage occurred at least two months before Anderson came to the house. The door continues to have problems, — it leaks — rain comes through the spaces and the moldings, the moldings don't fit right because there are spaces and there is a space between the top of the door and the frame which causes heat loss in the winter and the whistling or wind into the house. (Tr. 36-40). So, "all of that and the fact that it's not a solid oak door and it's not something I would have ordered." (Tr. 40).
Plaintiff argues that the contract must be rescinded and he must be refunded all monies paid since he did not receive what he bargained for — a solid oak wood door.
Plaintiff points out that even Ms. Dadio made the mistake of describing the door as solid wood, when in fact it was engineered, and that she gave this representation despite what was contained in the brochure which plaintiff asserts he never received. Plaintiff also contends that the contract should be voided because the door was defective — after it was installed latent and patent defects appeared and the door was not fit for the purpose intended. As such, defendant breached the warranties of implied fitness and implied merchantability.
In addition to contending that plaintiff cannot prove his case because he failed to present an expert, defendant argues that plaintiff waived any right to rescind the contract by accepting the door and hiring his own contractor to install the door. Defendant argues that the notes made by various Anderson employees who went to look at the door memorializing plaintiff's complaints — unfinished interior and exterior, pallet too short for the frame etc. are insufficient to establish defects. Additionally, defendant contends that by utilizing the door for four years plaintiff also negated any claim that the door was not fit for its intended purpose.
Analysis
In order to prevail on a claim for breach of contract, the claimant must demonstrate 1) an agreement between the parties, 2) performance by the claimant; 3) failure to perform by the breaching party, and 4) resultant damages. Austrian Airlines Oesterreichische Luftverkehrs AG v. UT F, 567 F. Supp. 2d 579, 592 (S.D.NY 2008). S7Z Imports, Inc. V. IFFCO, Inc., 2010 NY Slip Op. 32198U, 2010 NY Misc. LEXIS 3914 (Sup. Ct., Suff, Co. 2010) . See Furia v. Furia, 116 AD2d 694 (2d Dept. 1985).
Meaning of the Term Oak Door
The court must first determine what the contract meant when it set forth that defendant was to deliver an "oak door" to Ferraro. While plaintiff contends it means a solid oak door, defendant submits that it means an oak veneer door with engineered wood in the middle. Neither side presented any cases on this issue to assist the court in interpreting the contract. Nor did they present expert testimony on this issue.
There are a scant number of cases on this issue. State law follows a "custom and practice" canon of construction where the terms of a contract are ambiguous. See Evans v. Famous Music Corp. , 1 NY3d 452 , 459-60, (2004). The role of the court " in interpreting a contract is to ascertain the intention of the parties at the time they entered into the contract. If that intent is discernible from the plain meaning of the language of the contract, there is no need to look further. This may be so even if the contract is silent on the disputed issue." 1 NY3d at 458. Furthermore, under the principle of contra proferentum, courts are to construe ambiguous contract terms against the drafter. Sand v. Greenberg, 2010 U.S. Dist. LEXIS 1120 (S.D.NY 2010); Newman Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 663 (2d Cir. 1996); Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1207 (2d Cir. 1970).
In the closest case on point, Teague v. Canac of Boston, Inc., 2000 Mass. App. Div. 108 (2000), the written contract described the cabinets simply as "Malibu/Belair maple in natural finish;" no additional terms were included. The homeowner received cabinets with white interiors and objected to them because he wanted cabinets of solid wood construction. The store countered that the cabinets were precisely what had been shown to the plaintiffs prior to their signing the contract — wood veneer with white melamine interiors. Upon receipt the homeowner objected, asked defendants to take back the cabinets, and refused to allow the defendant's agents to install complete installation of the cabinets.
The court determined that where "an essential term in a written contract is in doubt" and it is clear that one party drafted the written contract, whereas the other party merely assented, the judge should utilize the "well — established rule of interpretation that a written instrument is construed strongly against the party who drew it." Id at 110. The contract was silent as to the composition of the cabinet's interior and as such, the contract had to be construed against its maker, the defendant.
In Patitucci v. Consumers Warehouse Center,, Inc., 2007 NY Slip Op. 52288U, 17 Misc 3d 136A (App. Term. 2d Dept 2007), the plaintiff also sued to recover the purchase price of kitchen cabinets he ordered because they were not solid wood. While he testified that he was under the impression that the sides and backs of cabinets were made or wood, as were the cabinet doors, and not of pressed wood, he admitted that defendant never specifically told him the cabinets would be made entirely of wood. Thus, the cabinets delivered to plaintiff were in conformity with what was described in sales order as "engineered wood" construction, and plaintiff therefore had no ground to reject them.
Here, the order form states "oak door," and the brochure which Ferraro states he did not receive sets forth that the inside of the door is laminated wood core with veneer. The small brochure that plaintiff claims he showed Dadio entitled "Elegant Introduction, KML by Anderson" describes the doors as having "Natural Wood Variety" and goes on to describe "the finest grades of oak, mahogany . . . are standard. Additional wood species available." No where does this brochure mention that the door was wood veneer (defendant's "B"). While Dadio initially stated that the door was veneer, oak veneer," on redirect, Diddio admitted that to her understanding "this was a solid wood door" (Tr. 11). In light of the parties continuous banter as to the term wood door, defendant's sales person's clear confusion as to the difference between a solid wood door and a veneer door, and the fact that defendant wrote the term "oak door," the court finds that the contract between the parties provided for a solid oak door." It is not necessary for the court to qualify plaintiff as an expert in construction in order to make this finding, since defendant also failed to present an expert on wood or construction and its own witness was confused as to the meaning of an oak door.
Neither party offered parol evidence to assist the court in determining the trade usage or custom as to the special meaning of the term "wood door" or "oak door" in the furniture or door business. See, e.g., Lucisano v. Paratore, 195 Misc. 45 (Mun. Ct., Syr. 1949).
In light of the above, the court finds that Perry's violated an express warranty by describing the door it sold plaintiff as "an oak door" when in fact the door was oak veneer . See, UCC § 2-313(1)(b) which provides that "any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description." Besicorp Group v. Thermo Electron Corp., 981 F. Supp. 86 (N.D.NY 1997).
Was there a rejection or acceptance of the door
Pursuant to UCC 2-601, "if the goods or the tender of delivery fail in any way to conform to the contract," a breach has occurred and a buyer may reject the goods and cease performing under the contract. U.C.C. § 2-601; Ho Myung Moolsan Co. v. Manitou Mineral Water, Inc., 2010 U.S. Dist. LEXIS 127869 (S.D.NY 2010); Austrian Airlines Oesterreichische Luftverkehrs AG v. UT Finance Corp., 567 F. Supp. 2d 579, 592 n. 93 (S.D.NY 2008); Y N Furniture Inc, v. Nwabuoku, 190 Misc 2d 402 (Civil Ct., Kings Co. 2001). Following delivery of a non-conforming good, the buyer has the option to reject the goods (UCC 2-602), revoke his acceptance of the goods upon discovery of the non-conformity (UCC 2-608), or accept the goods and seek damages for the loss resulting from the seller's breach (UCC 2-714). Cliff's Corporation v. Elmar Industries, Inc., 254 AD2d 723, 724 (4th Dept 1998). See, Ask Technologies., Inc. v. Cablescope, Inc. 51 U.C.C. Rep. Serv. 2d (Callaghan) 1028, 2003 U.S. Dist. LEXIS 18694 (S.D.NY 2003).
The buyer must alert the seller that the goods are non-conforming (UCC § 2-607). In order to effectively reject or revoke the goods, the buyer must "unequivocally communicate" his intent to the seller. " Ask Technologies, supra at 7; Sears, Roebuck Company v. Galloway, 195 AD2d 825, 827 (3rd Dep't 1993) (establishing "the burden is on the buyer to establish any breach with respect to the goods accepted." U.C.C. § 2-607(4)). The rejection must be made "within a reasonable time after delivery or tender." UCC § 2-602(1); Fanok v. Carver Boat Corp., LLC, 576 F. Supp. 2d 404, 418 (E.D.NY 2008); Y N Technologies, supra, 190 Misc 2d at 404 . See, Vitol S.A., Inc. v. Koch Petroleum Group, LP,, 2005 U.S. Dist. LEXIS 18688 (S.D.NY Aug. 31, 2005) ("The primary reason for the requirement of a notice of rejection is to provide the seller with an opportunity to cure or to allow the seller to attempt to minimize its losses). If the buyer fails to make an effective rejection, the buyer will be deemed to have accepted the goods. (UCC 606(1)(b); Y N Furniture, Inc., supra, 190 Misc 2d at 404. "Acceptance of goods can occur in a number of ways, one of which is when the buyer fails to make an effective rejection after having had a reasonable opportunity to inspect the goods (UCC 2-606 [b]). Sears Roebuck Co. v. Galloway, 195 AD2d 825, 826 (3rd Dept. 1993) See Randazzo v. Cherry Valley Tile Stone, 2005 NY Slip Op 50748U, 7 Misc 3d 135A (App. Term, 2d Dept. 2005) ("[a] purchaser's right to reject terminates upon acceptance").
The court must thus assess whether plaintiff unequivocally communicated his intent to reject the door and rescind the contract to Perry's Brick. See, Sears, Roebuck, supra, 195 AD2d at 827 (3rd Dep't 1993). A buyer's mere complaint about the goods does not constitute a clear and unequivocal act of rejection . Maggio Importato, Inc. V. Cimitron, Inc., 189 AD2d 654 (1st Dept,. 1993); Sears, Roebuck, supra at 8 27. In Ask Technologies v. Cablescope, supra, the defendant, through letters and phone calls, communicated its dissatisfaction with the quality of the work performed. Despite the many problems communicated by Cablescope, many if not most of these problems were addressed quickly, and Cablescope continued possession and use of the goods for months after its letters of dissatisfaction to Ask's president. "Such usage belies unequivocal rejection or revocation of the goods" which led the court to conclude that there was a constructive acceptance of the goods."
A rejection is untimely if made one year after delivery, Cliffstar Corp. v Cape Cod Biolab Corp. , 37 AD3d 1073 (4th Dept. 2007), or 16 months after discovery of the alleged defect, Cafero v. Emergency Services Holding, Inc., 11 AD3d 496 (2d Dept. 2004). In Sears. Roebuck, supra,, the court found that the undisputed evidence of defendant's continued retention and use of the boiler for a substantial period of time, covering several heating seasons, despite plaintiff's offers to remove the boiler and credit her account, constitutes an acceptance and belied defendant's contention that she had rejected the boiler. See, Zappala Co. v Pyramid Co. of Glens Falls, 81 AD2d 983 (3rd Dept. 1981) (by using the nonconforming blocks in the walls of its shopping mall, Pyramid accepted them pursuant to UCC § 2-606, subd [1], par. [b].
Although Ferraro timely notified Perry's Brick that the door was defective and was not of solid wood, he never effectively rejected the door. His mere complaints that he never bargained for a veneer door does not constitute a rejection. His testimony was equivocal as to whether he ever told Perry he did not want the door. Furthermore, he was more focused on having the Anderson employees fix the various alleged defects in the door, such as the lock and spaces between the frame and door, than he was in returning the door due to its being veneer. Given the primary emphasis plaintiff placed upon the door not being made of solid wood, it begs all reason for him to have requested that Perry's repair the various defects in the door, since the composition of the door was unalterable and non repairable.
Even assuming, arguendo, that Ferraro rejected the goods, he failed to act in a manner consistent with a buyer's duty to hold the item with "reasonable care at the seller's disposition . . . to permit the seller to remove them." Y N Furniture, supra, 190 Misc 2d at 404 citing UCC2-602(2)(b). The buyer must either store the rejected goods or take other actions to show it has not accepted or converted the goods Id at 405; UCC § 2-604 since "after rejection, any exercise of ownership by the buyer . . . is wrongful as against the seller." Id. citing UCC 2-602(2)(a).
Damages
A plaintiff's failure to effectively reject or revoke acceptance of the door does not impair any other remedy available for nonconformity under UCC Article 2. Cliffstar Corp. V. Elmar. 254 AD2d 723 (4th Dept. 1998). See, Levin v. Gallery 63 Antiques Corp., 2006 WL 2802008 (S.D.NY 2006). A buyer's right to sue for damages is preserved so long as he notified the seller "within a reasonable time after he discovers or should have discovered the breach." UCC 2-607(3)(a). See Cliffstar, supra; Sears, Roebuck, supra, 195 AD2d at 827. Thus, acceptance leaves unimpaired the buyer's right to be made whole, which can be accomplished by way of "recoupment in diminution or extinction of purchase price". Sears, Roebuck, supra at 827; UCC 2-607k official comment. However, upon acceptance of goods, it is the buyer's burden to establish any breach of warranty. UCC 2-607(4). See, Miron v. Yonkers Raceway, Inc., 400 F.2d 112, 119 (2d Cir. 1968); Koam Produce, Inc. v. DiMare Homestead, Inc., 213 F. Supp. 2d 314, 322 (S.D.NY 2002); Noreli Industries, Inc. v. Kleinert's, Inc, 57 AD2d 792 (1st Dept. 1977).
Pursuant to UCC § 2-714(1), a buyer who has accepted goods and given proper notification may recover as damages for any non conforming tender "the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable." Official Comment 2 to this subsection provides that the "non-conformity" referred to includes "not only breach of warranties but also any failure of the seller to perform according to his obligations under the contract." In the case of such on-conformity, the buyer s permitted to recover for his loss "in any manner which is reasonable."
Pursuant to UCC § 2-714(2), "[t]he measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount." Put another way, the measure of damages for breach of contract or warranty with respect to accepted goods is the difference between the fair market value of the goods accepted and their fair market value if they had been as warranted. Hangzhou Silk Imp. Exp. Corp. v. P.C.B. Int'l Ind. Inc., 2002 U.S. Dist. LEXIS 16578, 48 U.C.C. Rep. Serv. 2d (Callaghan) 1367 (S.D.NY 2002). See, Gem Jewelers, Inc. v. Dykman, 160 AD2d 1069 (3rd Dep't 1990) (specifying fair market value as the proper standard).
Official Comment 3 to UCC § 2-714(2) makes it clear that the usual standard, and a reasonable method for calculating damages set forth therein, is not intended as an exclusive measure of damages. "Read together, subsections (1) and (2) of § 2-714 provide that plaintiff may recover for its direct damages in any manner which is reasonable." American Electric Power Co. v. Westinghouse Electric Corp., 418 F. Supp. 435, 454 n. 34 (S.D.NY 1976) See, Happy Dack Trading Co. Ltd v. Agro — Industries, Inc. Et al, 602 F. Supp. 986, 994 (S.D.NY 1984).
Plaintiff must demonstrate that there were at "at least some damages" due to the breach. Aldon Industries, Inc. v. Brown, 647 F. Supp. 1558, 1560 (S.D.NY 1986). See, Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985.); Noreli Industries, Inc. v. Kleinert's, Inc., 57 AD2d 792 (1st Dept. 1977). An award of damages cannot be speculative and "may only be allowed when there is probative evidence of the amount of damages ." Hangzhou Silk Import, supra, at p. 6. Where precise proof cannot be supplied, proof "upon a reasonable basis" is permitted. Id.Wayne County Vinegar Cider Corp. v. Schorr's Famous Pickled, 118 Misc 2d 52, 64 (Civil Ct, Kings Co., 1983). However, a plaintiff need not prove its damages with "specific rigor,, since where a wrong has been done, the courts will endeavor to make a reasonable estimate of damages. Medinol, Ltd. V. Boston Scientific Corp., 346 F. Supp. 2d 575, 600 (S.D.NY 2004). See, Lexington Products, ltd. V. B.D. Communications, Inc., 677 F. 2d 251253-54 (2d Cir. 1982) (a person violating his contract cannot escape liability because there uncertainty as to the amount of damage caused).
Because plaintiff failed to produce any evidence as to the fair market value of solid oak doors as compared to the fair market value of oak veneer exterior doors back at the time of acceptance in late 2005-early 2006, the court cannot calculate the amount of damages to be awarded to Ferraro. Given the court's finding that the seller breached the contract by failing to deliver a solid oak door, plaintiff is given 20 days from receipt of this decision to produce evidence, in affidavit form, as to the difference in fair market value back in 2006 between a solid oak and veneer oak door of the KML caliber. He may also provide proof as to the going rate of similar wood veneer doors back in 2006. Defendant must award plaintiff the sum of $600 for the cost of the expensive lock that he could not install. Plaintiff may provide evidence of the costs he expended on the other lock he ultimately bought. Defendant is given two weeks to refute or controvert this evidence. The court will take this evidence upon submission.
Plaintiff also contends that there were inherent defects in the door — it was too short and hence there was a space between the top of the door and the frame, one of the door panels was experiencing water seepage and air infiltration, and the door was bowed — which constituted a breach of the warranties of merchantability and implied fitness.
An implied warranty of merchantability is implied in a contract "if the seller is a merchant with respect to goods sole of that kind" (UCC § 2-314); Shalom Malul v. Capital Cabinets, Inc., 191 Misc 2d 399, 403 (Civil Ct., Kings Co. 2002). Breaches of this warranty involve goods that due to defects either do not work properly or were unexpectedly harmful. See White and Summers, UCC, § 9-13 at 662-64 (5th ed). To be merchantable, the goods must be at least such as are fit for the ordinary purposes for which such goods are used. " Shalom Halul, supra at 403. This inquiry focuses on the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners. Denny v. Ford Motor Co., 87 NY2d 248, 259 (1995). A warranty of fitness for ordinary purposes "does not mean that the product will fulfill [a] buyer's every expectation." White and Summers, supra, § 9-13 at 671 et seq. Rather, such a warranty "provides for a minimal level of quality". Denny supra, at 259 citing Skelton v General Motors Corp. 500 F. Supp. 1181, 1191 (N.D. Ill. 1980).
Pursuant to UCC § 2-315, an implied warranty of fitness for a particular purpose arises "if 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, " Shalom Malul, supra at 403. This warranty is more specific and precise than the warranty of merchantability. White and Summers, supra at § 9-15, pp. 677-78.
The court finds that the implied warranty of fitness is inapplicable to the instant matter since no evidence was presented that Ferraro had any particular purpose for buying this specific KML door. Rather, the more generic warranty of merchantability applies. In order to prove that a seller deviated from the standard of merchantability, a plaintiff must show that the goods were not "merchantable" at the time of the sale and that the injury or damage to the plaintiff was caused proximately and in fact by the defective nature of the goods. White and Summers, supra, § 9-12, pp. 657-58. In order for a breach of implied warranty of merchantability to occur, the product must be defective at the time it was sold. Dildine v. Town of Country Truck Sales, Inc., 259 Ga. App. 732, 577 S.E. 2d 882 (2003).
It is clear that the door delivered by defendant to Ferraro at some point contained defects which affected its merchantability. According to Ferraro, the space between the top of the door and the frame caused air infiltration and allowed cold air to come in during the winter. The door was bowed and there was water leakage in one of the panels. These factors clearly affect the ordinary purpose of an exterior door — to keep the air and inclement weather out, and to provide a form of security to the house. The issue thus becomes whether the door was defective at the time of delivery or whether Ferraro's actions caused the door to manifest defects.
Upon reviewing the evidence, the court finds that defendant breached the warranty of merchantability with respect to the panel that had air infiltration problems and leakage. Plaintiff's own exhibits "5" and "6" reveal that plaintiff first contacted Anderson on January 18, 2006, when he complained about air infiltration issues with one of the panels on the door. The court finds this complaint to be close enough in time to the date of receipt so as to conclude that the door was inherently defective in this regard.
However, plaintiff did not, at this point, complain about water leakage in the panel. The court finds that had there been been leakage from the panel approximately three weeks after delivery, plaintiff would have so complained. . Unfortunately, plaintiff overestimated his expertise with wooden doors. Rather, the court credits the writings of the Anderson employees in exhibits introduced by plaintiff over Ferraro's testimony as to the root cause of the door being bowed and cracked. The workers noted that four months after the door had been installed it still had not been sealed or finished which resulted in the door becoming bowed and leakage. The notes also indicated that even after the workers apprised Ferraro of this fact, he still had not sealed or finished the door upon their return to his home.
Similarly, plaintiff did not complain about the space between the door and frame, to Anderson on January 18th. Rather than having Perry's measure the door, plaintiff provided the measurements to Alicia and decided to have his own person install the door. Neither plaintiff nor Izzy inspected the door to see if it fit into the frame prior to Izzy's dis-assembling the door from the frame. The notes from the Anderson workers indicated that the door had been improperly shimmed. As such, plaintiff assumed the risk of installation and measurements and was responsible for the fit of the door.
Again, plaintiff has failed to offer any evidence as to how to calculate the diminished value of the door due to the air infiltration through the panel. However, the court finds that this defect diminished the value of the door by $2500. The court thus directs defendant to refund plaintiff the sum of $2500 for this breach of the warranty of merchantability as well as $600 for the cost of lock that he could not install. The court awaits plaintiff's submission of an affidavit as to the difference of value between a solid oak door and a veneer oak door of KML's caliber, as well as the costs of the replacement lock he had to buy for the door, within 20 days of receipt of this decision, and defendant's comments, before issuing a final monetary award to plaintiff.
This constitutes the decision and order of the court.