Opinion
2007-296 K C.
Decided July 30, 2008.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered July 10, 2006. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,000.
Judgment modified by providing that within 30 days of the date of the order entered hereon, plaintiff shall make the subject furniture available to defendant; otherwise judgment reversed without costs and judgment directed to be entered in favor of defendant dismissing the action. As so modified, judgment affirmed without costs.
PRESENT: RIOS, J.P., PESCE and GOLIA, JJ.
Plaintiff seeks in this small claims action to recover the sum of $3,000, representing a downpayment on furniture ordered from defendant. When the furniture was delivered to plaintiff on December 1, 2005, he immediately notified defendant of its nonconformity ( see UCC 2-601, 2-602). After approximately four weeks passed without defendant accepting the return of the furniture, plaintiff brought this suit. The matter was tried on July 10, 2006, resulting in a judgment in favor of plaintiff.
Defendant was given ample notice of the nonconformity of the furniture delivered and did nothing to cure the breach ( cf. UCC 2-508). Thus, plaintiff was entitled to recover his downpayment (UCC 2-711; see Dweyer v Montalbano's Pool Patio Ctr., Inc. , 10 Misc 3d 135[A], 2005 NY Slip Op 52122[U] [App Term, 2d 11th Jud Dists 2005]). However, substantial justice requires that plaintiff return the furniture to defendant (CCA 1805, 1807; see Dweyer v Montalbano's Pool Patio Ctr., Inc. , 10 Misc 3d 135[A], 2005 NY Slip Op 52122[U] [2005], supra).
The suggestion by the dissent that plaintiff was obligated to wait more than four weeks before commencing suit is unrealistic. There is no evidence that any further forbearance by plaintiff would have resulted in a conforming delivery ( cf. UCC 2-508). The matter was tried seven months after the delivery of the nonconforming furniture, and up to that date, defendant had done nothing. Under the circumstances presented, it has been demonstrated that any such forbearance on the part of plaintiff would have been an exercise in futility.
Accordingly, the judgment in favor of plaintiff is modified by providing that within 30 days of the date of the order entered hereon, plaintiff shall make the subject furniture available to defendant. In the event plaintiff fails to make the furniture available, the judgment is reversed and judgment is directed to be entered in favor of defendant dismissing the action.
Rios, J.P., and Pesce, J., concur.
Golia, J., dissents in a separate memorandum.
In this small claims action, plaintiff seeks to recover damages in the sum of $3,000, representing a deposit given by him to defendant on an order for custom-made Italian furniture. The parties' August 12, 2005 contract provided for an approximate delivery date of three months, but it also appears to have contained general language that "custom special orders may take up to 6 months for delivery." On December 1 or 2, 2005, the furniture was delivered to plaintiff, but the delivery did not conform fully to the terms of the contract. Plaintiff thereupon rejected the furniture, which the deliverymen, upon defendant's instruction, left in plaintiff's home. Defendant promised to cure the tender, but plaintiff brought the instant action on December 28, 2005. Following a nonjury trial, judgment was entered in favor of plaintiff.
In my view, substantial justice was not done between the parties according to the rules and principles of substantive law ( see CCA 1807). The evidence showed that the furniture was defective, and plaintiff therefore had the right to reject it (UCC 2-601; 93 NY Jur 2d, Sales and Exchanges of Personal Property § 153). Upon plaintiff's timely rejection, defendant seasonably notified plaintiff of its intention to cure (UCC 2-508; 93 NY Jur 2d, Sales and Exchanges of Personal Property § 107). Given the ambiguity in the contract as to the time for delivery, defendant's time to perform had arguably not yet expired and, thus, defendant still had over two months to tender a conforming delivery within the contract time (UCC 2-508). In any event, even if defendant's time to perform had expired as of the December delivery, under the circumstances herein, defendant had "a further reasonable time to substitute a conforming tender" (UCC 2-508) following the rejection. The approximate four-week period between the nonconforming tender and the filing of a claim by plaintiff was insufficient to constitute a further reasonable period of time within which defendant could cure the defect (UCC 2-508), particularly in view of the special or custom-ordered nature of the furniture ( compare General Business Law § 396-u [c]) and the distance from its country of origin. Under the circumstances, plaintiff was barred "from bringing an action for defects his recalcitrance prevented from curing" ( Uchitel v Tripler Co., 107 Misc 2d 310, 316 [App Term, 1st Dept 1980]).
The assertion by the majority that defendant "did nothing to cure the breach" is not supported by the record. Defendant's employee testified that "It doesn't take two days to fix it. This stuff comes from Italy. I could show you the receipt that we did try to order the furniture to fix it for them, but they didn't give me no time." Defendant's employee also testified that he went to plaintiff's house and saw "it wasn't the right way. I understand that . . . and I would do anything possible to change it and to fix it for them." In view of the foregoing, there is no question that the items were nonconforming, but there is also no question that defendant had agreed to correct the problems.
The majority also asserts that the events subsequent to the commencement of the action demonstrate that any further forbearance to sue on the part of plaintiff would have been an exercise in futility. On the contrary, upon being served with process in this action, it would, in my view, have been an exercise in futility for defendant to have thereafter tendered a conforming delivery. Indeed, plaintiff acknowledged that several days after this lawsuit was commenced, he received a telephone call from defendant's principal indicating that in view of the pending lawsuit, defendant was suspending any attempts at curing. Unlike the majority, I do not hold against defendant any failure to cure following commencement of this action.