Opinion
Case No. C-12022SC
05-31-2022
Bethany Ralph, Plaintiff, v. George Cole and George Cole Auctions, Inc., Defendants.
Unpublished Opinion
Jonah Triebwasser, J.
Plaintiff is suing defendants for $655.00 for the cost of urns purchased online at auction and the $200.00 cost of pick up and delivery of said urns, for a total of $855.00. Plaintiff is an attorney who appeared pro se. Defendant was represented by Anna W. Kirschner, Esq., of Red Hook, New York.
Testimony at Trial
Plaintiff alleges that defendants offered two urns for sale at an online auction that plaintiff participated in, rather than go in person due to the danger of infection by the Covid virus. Plaintiff's exhibit 1, in evidence, shows a photo in an auction offering by the defendants of the two urns, sitting on bases, without noticeable cracks or damage. In the photograph, the urns were apparently placed directly in the corner formed by two walls touching at a 90 degree angle. Plaintiff was the successful bidder on the urns, for a cost of $655.00 and, given the weight of the urns, hired a truck and driver for $200.00 to pick up and deliver the urns.
Upon receipt of the urns, plaintiff discovered that they were severely damaged as shown in the photographs contained in plaintiff's exhibit 2, in evidence. One urn was badly broken and rusted through at the bottom. That urn was held together with boards and screws and detached from the base. Plaintiff called defendants to complain about the condition of the urns. At first, defendants agreed to take the urns back and refund the money, then offered 60% of the purchase price, then 50% of the purchase price, and then refused to refund any money.
In a defense probably unique in the annals of small claims proceedings, defendants position was, in essence, that the plaintiff should not have trusted them. Caveat emptor was the cry heard from defense counsel on more than one occasion during the trial of this matter.
"Let the buyer beware!"
In addition, defendants offered what they claimed was their auction sales policy in exhibit B, in evidence. This document was alleged to be a download of the policies found on their website. Among other conditions, the merchandise was sold "as is."
It is significant that there was not a screen shot of the actual website content offered into evidence, nor was there any written evidence that the plaintiff accepted these conditions. It is also significant that defendants offered no bill of sale into evidence to show that the sale was "as is." Finally, the way the offering photograph was taken, apparently in the corner of a room, could lead one to believe that the urn in question was propped up to conceal that failure of the broken base to support the rest of the urn.
Decision of the Court
The credible testimony at trial was that the actual condition of the urns was dramatically different when sold than what was shown in defendants' auction offering. Given the dangers of congregating during the Covid pandemic, it was only natural that plaintiff participated in the auction online. It was not unreasonable for plaintiff to rely on defendants' photographic representation.
New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller's agent to disclose any information concerning the [object being sold] when the parties deal at arms length, unless there is some conduct on the part of the seller or the seller's agent which constitutes active concealment; if however, some conduct, more than mere silence, on the part of the seller rises to the level of active concealment, a seller may have a duty to disclose information concerning the [object]. See Jablonski v. Rapalje, 14 A.D.3d 484 (2d Dept., 2005).
Inasmuch as the urns were not as advertised, and were photographed in such a way as to hide the true condition of the urns (this being the active concealment spoken of in Jablonski), the Court rules that substantial justice demands that the purchase price of $655.00 be refunded to plaintiff. As transportation of the urns is a natural outgrowth of the sale, the Court also orders that the $200.00 cost of transportation of the urns be paid to plaintiff, for a total of $855.00, which is to be paid to plaintiff within 30 days.
Uniform Justice Court Act § 1804
This decision also constitutes the Order of the Court.
SO ORDERED.