Opinion
Index No. CV-011381-21/NY
07-03-2024
Mila Buckner, Plaintiff, v. Elzbieta Demling DBA Abbrera Cattery, Defendants.
Plaintiff: self-represented Defendant: self-represented
Unpublished Opinion
Plaintiff: self-represented
Defendant: self-represented
ILANA J. MARCUS, JUDGE
In this action, plaintiff alleges that she purchased a cat from defendant, a cat breeder. Plaintiff contends that the cat, "Sugar," was terminally ill at the time of sale. Plaintiff brings this action for $8,062.21, representing Sugar's purchase cost and medical expenses for treating Sugar's illness through the first year of his life. Defendant contends that she sold a healthy cat to plaintiff. A trial was conducted on April 8, 2024, where both parties testified. Plaintiff is granted judgment, as follows:
At trial, plaintiff testified that in February 2023, she viewed a profile for Sugar on a website that facilitates the sale of cats (see Pltf Exhs 1 and 2). It was undisputed that Sugar was advertised as healthy, with the language "[k]ittens come with health guarantee, pedigree papers. Will be dewormed and vaccinated" (see Pltf Exh 1). It was also undisputed that in early March 2023, plaintiff purchased Sugar from defendant for $1,700.00, which included transportation fees for delivery to New York City.
Plaintiff testified that soon after delivery she noticed that Sugar was congested and seemed sick. In March 2023, within days of purchasing Sugar, plaintiff took Sugar to a veterinarian. Defendant reimbursed plaintiff for those initial medical expenses in the amount of $387.81.
In late May 2023, Sugar became severely ill. Plaintiff testified that Sugar underwent emergency surgery at an animal hospital to remove fluid from his lungs. At that time, plaintiff became aware that Sugar was diagnosed with "FIP," a terminal illness, and was given a week to live. Plaintiff testified that she was sad and distraught over the diagnosis and spent significant time and energy caring for Sugar over the next month. Also in June 2023, plaintiff testified that she became aware that there were "experimental" treatments that might prolong Sugar's life. She purchased those treatments and began administering them to Sugar, which was time consuming and emotionally taxing.
Plaintiff also testified that in June 2023, she contacted defendant and informed her of the FIP diagnoses. Plaintiff testified that defendant offered to take Sugar back, or if plaintiff wanted to keep Sugar, defendant would return $300.00. Plaintiff testified that she rejected the offer for several reasons. Plaintiff believed that Sugar was too frail to survive a trip back to defendant's home. Plaintiff also believed that defendant may euthanize Sugar. Plaintiff also testified that there was a dispute regarding the terms of returning Sugar to defendant, stating that defendant offered to take Sugar back, but she did not offer a full reimbursement of Sugar's purchase price and medical expenses to date. Consequently, plaintiff opted to keep Sugar in her care. Plaintiff incurred additional medical expenses, which she sues for here.
Defendant testified that she is sorry for the situation and did not intentionally deliver a sick animal to plaintiff. Defendant claimed that in June 2023, after learning of the FIP diagnoses, she offered to take the cat back for a full refund or provide $300.00 to plaintiff if she wanted to keep Sugar.
General Business Law (GBL) §§ 752-755 governs the sale of animals and grants consumers rescission rights 14 days after purchase if a licensed veterinarian "certifies such animal to be unfit for purchase due to illness, a congenital malformation..., or the presence of symptoms of a contagious or infectious disease" (GBL § 753). Options provided to the buyer are that the buyer may: (1) return the animal and obtain a refund of the purchase price plus the costs of the veterinarian's certification; (2) return the animal and receive an exchange animal plus the certification costs; or (3) retain the animal and receive reimbursement for veterinarian services in curing or attempting to cure the animal. For this last option, the statute provides that reimbursement to cure or attempt to cure the animal may not exceed the animal's purchase price (GBL § 753[1][c]).
In addition, pet dealers are required to have animals inspected by a veterinarian prior to sale (GBL § 753-a) and provide consumers with certain information concerning the sale, health of the animal, and pedigree (GBL §§ 753-b, 753-c), which does not appear happened here.
Here, plaintiff cannot avail herself of this statute as she did not comply with the requirements set forth in GBL § 753 - namely acquiring a certification from a licensed veterinarian that the animal was not fit for purchase. However, the Uniform Commercial Code ("UCC") permits plaintiff recovery beyond the remedies of GBL § 753 (see Saxton v Pets Warehouse, Inc., 180 Misc.2d 377, 378 [App Term, 2d Dept 1999]).
The purchaser of an unhealthy animal may recover damages pursuant to UCC § 2-714 on the theory that a merchant seller breached the warranty of merchantability (see UCC 2-314 [implied warranty]; see Gebbia v Schulder, 32 Misc.3d 144 (A) [App Term, 2d, 11th, and 13th Jud Dists 2011]). Cats constitute "goods" within the meaning of UCC § 2-105, and a private breeder may be considered a "merchant" within the meaning of UCC § 2-104(1) (see Appell v Rodriguez, 14 Misc.3d 131 [A] [App Term, 9th & 10th Jud Dists 2007]).
UCC § 2-714 provides that "[w]here the buyer has accepted goods... [s]he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable." Section 2-714(2) further defines the measure of damages available for breach of warranty as "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 been as warranted...."
This court credits plaintiff's testimony that she purchased a cat that was ill at the time of sale. Plaintiff testified that she noticed Sugar's congestion within a day or so of purchase and that Sugar was isolated from all other animals immediately after delivery from defendant. Defendant here breached the subject sale agreement and damaged plaintiff as a result. Plaintiff did not receive what she bargained, paid for, and was guaranteed - a healthy cat.
As to damages, this court is guided by the statutes discussed above. GBL § 753 allows for a return and replacement of the animal, or a reimbursement of veterinary costs not exceeding the purchase price of the animal. UCC § 2-714(2) allows for damages beyond the purchase price to bring the goods back into conformity to what was promised. When an unhealthy animal is delivered, courts have refunded the purchase price for the animal (see Cahill v Blume, 8 Misc.3d 1004 (A) [Civ Ct, Richmond Cty 2005]; Bazzini v Garrant, 116 Misc.2d 119, (NY Dist Ct, Sixth Dist, Suffolk Cty 1982]). In assessing damages pursuant to the UCC, the Appellate Term reasoned that a buyer is entitled to the purchase price, any sales tax, and the "reasonable cost of veterinarian expenses incurred by plaintiff in the treatment of the animal" (Saxton v Pets Warehouse, Inc., 180 Misc.2d 377 [App Term, 2d Dept 1999]). Therefore, plaintiff here is entitled to Sugar's purchase price and reasonable veterinarian expenses.
Plaintiff conceded that she was advised by a veterinarian that Sugar's illness was terminal, and any treatments were experimental. It stands to reason medical bills prior to the diagnosis are reasonable and those that follow were not. As such, this court awards plaintiff the purchase price and reimbursement of veterinarian bills through Sugar's diagnoses with FIP on May 30, 2023. Accordingly, plaintiff is awarded a judgment of $4,310.15 ($1,700.00 purchase price + $2,610.15 in medical bills incurred on May 30, 3023). This court does not make an award for medical bills incurred in March 2023, as defendant already reimbursed plaintiff for those expenses.
Accordingly, it is hereby ORDERED that plaintiff is awarded $4,310.15, with interest as of March 4, 2023, and costs against defendant.
This constitutes the decision and order of the court.