Claimant purchased a vintage Rickenbacker bass guitar for $2430 from Southside Guitars, LLC, based on an advertisement he saw on their website. Defendant Sam Taylor is one of the owners of Southside Guitars, LLC. Immediately after the purchase, claimant sent the guitar to a Rickenbacker guitar specialist in Oregon to have it appraised. Upon learning that more than twenty parts were changed in the vintage guitar, claimant returned it to the defendants for a refund. Defendants, however, had a two-day refund policy, and the guitar was returned to them more than two days later. Therefore, defendants refused the return of the guitar claiming that it was late and that it was broken. After negotiations with claimant, they offered a partial refund of $150.00, to which claimant initially acquiesced, but ultimately rejected.

Claimant brings this action against defendant for "defective merchandise", but made allegations of false advertising and sought damages based thereon. And in that defendant is an owner of the guitar store, the proper party defendant should be Southside Guitars, LLC. Given the relaxed pleading standards that are applied to Small Claims action, this court will sua sponte amend the caption to reflect the proper defendant and conform the claimant's pleadings to the proof (UJCA 1803[a], 1804; see Albert v Margaretten 2002 WL 1414098 [App. Term 9th & [*2]10th Jud. Dists. 2002]. Although neither party had the original web advertisement of said guitar, there was no dispute as to the fact that the advertisement disclosed only that the guitar had "changed tuners". Claimant stated that he did not have a problem with the changed tuners, which consisted of four parts. His problem was with the many remaining parts that were changed and which substantially devalued the guitar.

General Business Law § 349 prohibits false advertisement. In an action under this section, claimant must prove that the advertisement was misleading in a material respect and that he was injured thereby (General Business Law § 350-a). The standard to determine whether an advertisement is misleading is whether it is deceptive to the reasonable person acting reasonably under the circumstances (see Andre Strishnak & Associates, P.C. v Hewlett Packard Co., 300 AD2d 608 [2002]).

Here, claimant, a vintage Rickenbacker guitar enthusiast, but not an expert, purchased the guitar knowing that there were four changed tuners, as represented by the advertisement and the sales representative. What he did not bargain for were the twenty or so additional changed parts as found by his expert. Defendants claim that the changed parts do not affect this specific guitar as it was a "player's grade" guitar. They further claimed that they cannot always be sure of the quality or authenticity of vintage guitars. However, neither their good faith or bad faith, nor their intent in advertising is relevant to the issue of whether the advertisement was deceptive or misleading. While determining how much can be replaced in a vintage Rickenbacker guitar before it is just a plain old guitar may be intriguing, this court need not entertain it because an extensively altered guitar was not one that claimant saw in the advertisement and not one that he intended to buy. Further, while defendants had a two-day return policy, it was unreasonably applied to claimant when claimant was assured that he could return the guitar, if necessary, after the appraisal. However, it was not unreasonable for defendant to accept the return of the guitar since it was damaged while it was in claimant's possession.

Defendant made much about the attempted offers of settlement. However, the result of the failed negotiations left the guitar in claimant's possession, and leaves to the court to do substantial justice under the Small Claims Act § 1804 UCCA. Accordingly, the court awards judgment in favor of claimant in the amount of $830.00, the difference between the purchase price for claimant and that for defendants, with interest to run from March 8, 2007.

This constitutes the decision and order of the court.

Dated:November 26, 2007________________________

MARGARET A. CHANJudge, Civil Court