Opinion
Index No. SC-001824-20/KI
09-28-2022
Tatsiana Lazovik, Plaintiff, v. Puppy Boutique a/k/a puppypetite.com, Defendant.
Plaintiff: Tatsiana Lazovik (pro se) Defendant: Kopelevich & Feldsherova PC
Unpublished Opinion
Plaintiff: Tatsiana Lazovik (pro se)
Defendant: Kopelevich & Feldsherova PC
Derefim B. Neckles, J.
Claimant Tatsiana Lazovik ("claimant") commenced this small claims action against defendant Puppy Boutique a/k/a puppypetite.com ("defendant"), alleging causes of action sounding in breach of contract and breach of warranty. Claimant alleged that defendant sold her an unhealthy puppy and, as a result, she incurred veterinary expenses due to its condition. A small claims trial was held wherein claimant sought to recover damages in the amount of $9,612.00. At the trial, claimant appeared pro se, and defendant appeared by counsel. After considering the testimony of the parties and the documentary evidence submitted at trial, the court makes the following findings of fact and conclusions of law.
Testimony of the Parties
Claimant testified that on November 2, 2019, she purchased a five-month-old female Maltese puppy (the "puppy") from defendant at a cost of $1,357.00. She purchased the puppy for the purpose of breeding and for companionship. Within two months of purchase, the puppy became ill and needed immediate care. On January 17, 2020, claimant took the puppy to her primary care veterinarian at World of Animals of Bethayres in Pennsylvania. Upon examination of the puppy, the veterinarian referred claimant to a Veterinary Specialty and Emergency Center (VSEC) in Levittown, Pennsylvania, for further evaluation of the puppy. After various tests, the veterinarian at VSEC diagnosed the puppy with congenital portosystemic liver shunt and performed surgery on January 30, 2020 to correct the problem. Claimant testified that sometime thereafter, she telephoned defendant regarding the veterinary expenses she incurred. In response, she was advised that the puppy had to be taken to defendant's veterinarian for examination. Claimant further testified that she took the puppy to a local veterinarian facility for treatment because it was very sick and needed immediate attention. She stated that the surgery was necessary to save the puppy's life. She alleged that defendant sold her the puppy knowing that it had a genetic malformation, and despite defendant's representation that it was in good health.
Claimant produced in evidence a report dated January 27, 2020 from VSEC. The report contains the puppy's history, breed, age, and weight. The report also details the different diagnostic examinations performed, and recommended treatments. The report lists under diagnosis and recommendation "[s]olitary congenital portosystemic (splenocaval) liver shunt, mild microhepatia, renomegaly and urine sediment (suspect urates) secondary to shunt." Claimant contended that she is entitled to recover the purchase price of the puppy in the amount of $1,357.00, as well as the cost of the veterinary expenses she incurred in the amount of $8,255.00, for a total sum of $9,612.00.
Defendant's general manager, Benjamin Santiago testified at trial that he sold the puppy to claimant on November 2, 2019. He testified that claimant called the defendant's store and spoke to the receptionist about the veterinary bills and was advised that she could either get a replacement puppy or a refund of the purchase price. The general manager asserted that claimant is not entitled to a reimbursement for the veterinary expenses as she did not comply with the terms of the contract of sale.
The contract of sale between claimant and defendant, dated November 2, 2019, admitted in evidence, provides, inter alia:
"In the event a puppy is found unfit for sale: we request the puppy be produced at our office for further evaluation. (No reimbursements/refunds will be granted until [] veterinarian concludes that there is such unfitness)."
"All puppies are sold as pet quality only; Not for Breeding Purposes."
"NYS General Business Law Section 753 provides that if a pet dealer The Puppy Boutique, the seller wishes to contest a demand for a refund, exchange or reimbursement made by a consumer You, such pet dealer shall have the right to require the consumer You, the purchaser to produce the animal for examination by a licensed veterinarian designated by such dealer The Puppy Boutique, the seller... I the purchaser understand. X [claimant's] Initial"
The contract lists the puppy as having "no known disease, illness or congenital or hereditary condition adversely affects the health of the animal at the time of sale."
Relying on General Obligations Law § 753, defendant asserted that claimant is entitled to either a replacement puppy or a refund of the purchase price.
General Business Law § 753Article 35-D of the General Business Law ("GBL") governs the sale of cats and dogs. GBL § 753 (1) provides, in pertinent part, that a pet dealer shall afford the consumer the right to choose one of the following options provided in the statute if, within 180 calendar days following the sale of the pet, a licensed veterinarian certifies that the pet is unfit for purchase due to a congenital malformation which adversely affects the health of the animal:
"(a) The right to return the animal and receive a refund of the purchase price including sales tax and reasonable veterinary costs directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section;
(b) The right to return the animal and to receive an exchange animal of the consumer's choice of equivalent value and reasonable veterinary costs directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section; or
(c) The right to retain the animal and to receive reimbursement from a pet dealer for veterinary services from a licensed veterinarian of the consumer's choosing, for the purpose of curing or attempting to cure the animal. The reasonable value of reimbursable services rendered to cure or attempting to cure the animal shall not exceed the purchase price of the animal. The value of such services is reasonable if comparable to the value of similar services rendered by other licensed veterinarians in proximity to the treating veterinarian. Such reimbursement shall not include the costs of initial veterinary examination fees and diagnostic fees not directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section.
The commissioner by regulations shall prescribe a form for, and the content of, the certification that an animal is unfit for purchase, which shall be provided by an examining veterinarian to a consumer upon the examination of an animal which is subject to the provisions of this section. Such form shall include, but not be limited to, information which identifies the type of animal, the owner, the date and diagnosis of the animal, the treatment recommended if any, and an estimate or the actual cost of such treatment. Such form shall also include the notice prescribed in section seven hundred fifty-four of this article."
GBL § 753 (2) provides the following:
"The refund and/or reimbursement required by subdivision one of this section shall be made by the pet dealer no later than ten business days following receipt of a signed veterinary certification as herein required. Such certification shall be presented to the pet dealer not later than three business days following receipt thereof by the consumer."
Further, GBL § 753 (5) states:
"Nothing in this section shall in any way limit the rights or remedies which are otherwise available to a consumer under any other law."
Analysis
At trial, claimant did not submit a valid certification from a veterinarian in a form as prescribed by the commissioner, stating that the puppy was unfit for purchase as required by GBL § 753 (1). As such, claimant is not entitled to avail herself of the remedies afforded by GBL § 753 (see Sacco v Tate, 175 Misc.2d 901, 902 [App Term, 2nd Dept 1998] [holding that plaintiffs could not recover damages under GBL § 753 due to her failure to comply with the statute]).
However, GBL § 753 does not "limit the rights or remedies which are otherwise available to a consumer under any other law." Another theory under which claimant could recover damages is pursuant to section 2-314 of the Uniform Commercial Code ("UCC"). That section provides that "[u]nless excluded or modified... a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind." Dogs have been held to fall within the definition of "goods" as defined in UCC 2-105 and defendant, a dog seller, is a "merchant" within the meaning of UCC 2-104 (1) (see Saxton v Pets Warehouse, Inc., 180 Misc.2d 377, 378 [App Term, 2nd Dept]; see also Appell v Rodriguez, 14 Misc.3d 131 [A] [App Term, 9th & 10th Jud Dists 2007]; Badillo v Bob's Pet Center, Inc., 40 Misc.3d 137 [A] [App Term, 2nd, 11th and 13th Jud Dists 2013]).
In the instant case, claimant demonstrated that defendant breached the implied warranty of merchantability under UCC 2-314 . The evidence adduced at trial established that defendant sold claimant a puppy that suffered from a congenital condition, which by its nature, had to have existed at the time of sale (see Appell v Rodriguez, 14 Misc.3d 131 [A]). Claimant submitted proof establishing that she incurred $8,255.00 in veterinary expenses relating to the treatments of the puppy, including hospitalization and surgery due to its congenital condition. As such, claimant is entitled to recover damages pursuant to UCC 2-314 and 2-714 (see Budd v Quinlan, 19 Misc.3d 66, 68 [App Term, 9th & 10th Jud Dists 2008] ["substantial justice requires... [an] award to plaintiff as against defendant, representing the amount she paid to the veterinarian to treat the dog"]; see also Sacco v Tate, 175 Misc.2d at 902; Lombardo v Empire Puppies, 50 Misc.3d 143 [A] [App Term, 2nd, 11th and 13th Jud Dists 2016]). However, since claimant retained possession of the puppy, she is not entitled to a refund of the purchase price.
Conclusion
Based on the forgoing, the court finds in favor of claimant. Damages is awarded to claimant in the amount of $8,255.00.
Accordingly, it is hereby ORDERED that the Clerk is directed to enter judgement in favor of claimant Tatsiana Lazovik against defendant Puppy Boutique a/k/a Puppypetite.com in the amount of $8,255.00, without interest and cost.
This constitutes the decision and order of the court.