These two actions arose from the same transaction. In the first (SCR#1640/09), claimant, Cheryl Rizzo, commenced this small claims action against the defendant, The Puppy Boutique, and defendant Maria Santo, alleging that owing to the defendants selling a defective puppy to her daughter, Amanda Caruso, claimant incurred expenses for treatment of the dog. In the second action (SCR#1641/09), claimant Amanda Caruso, commenced this small claims action against the defendant, The Puppy Boutique, and defendant Maria Santo, alleging that the defendants sold the claimant a defective puppy and that the claimant incurred the cost of the purchase and veterinary expenses as a result of the dog's condition.

A trial was held on March 11, 2010. Both sides appeared without counsel. The Puppy Boutique was represented at trial by Phyllis Lucca, a manager. Defendant Santo failed to appear or answer. Lucca was unable to tell the court whether "The Puppy Boutique" was the corporate name of the defendant or a "doing business as" name for some other entity.

A search of the Department of State, Division of Corporations records reveals that there is no corporate entity known as "The Puppy Boutique." A review of the documents submitted by both the claimants and the defendant, lists the businesses name as "The Puppy Boutique" without the disclosure of any other legal name. The only entity with a similar name is the Puppy Boutique Grooming Salon, Inc. a Queens County business which was dissolved by proclamation on September 25, 1991.

Claimants testified that Caruso purchased the dog for $1,630.00 plus $93.00 in sales tax from the defendant on March 3, 2008. Thereafter Caruso and her mother incurred expenses over the next year in veterinary bills. Caruso submitted a bill from the Garden State Veterinary Specialties totaling $3,446.92 for services rendered in December 2008. Rizzo testified that she actually paid this bill using a credit card. In addition, claimants submitted a bill from the Staten Island Veterinary Group for services between March 2008 and February 2009. However, the bill does not have a total amount on it, however, it appears to add up to $2,266.10.

The contract from the seller indicates that there is a guarantee for up to one year for congenital diseases such as "liver dysfunction." The contract only allows cash refunds during the first fourteen days. Thereafter the contract only requires the defendant to replace the animal with a puppy of equivalent value.

General Business Law Article 35-D regulates the "Sale of Dogs and Cats." The statute provides for the purchaser of a pet to have a veterinarian of the consumer's choice certify that the [*2]animal "is unfit for purchase (GBL §753(1))" within fourteen days of the sale because of "illness, a congenital malformation which adversely affects the health of the animal, or the presence or symptoms of a contagious or infectious disease...." If the veterinarian makes such a certification then the consumer has three alternatives, return the animal and receive a refund of the purchase price including reasonable veterinary costs; return the animal and receive an exchange animal; or retain the animal and receive reimbursement from the pet dealer for veterinary services for the purpose of curing or attempting to cure the animal. In the third option, the reimbursement cannot exceed the cost of the animal.

The statute only covers animals purchased with a congenital defect (acquired during development in the uterus) and not one with a condition that is hereditary (genetically transmitted from a parent to offspring). Claimants have submitted a statement from the Staten Island Veterinary Group dated March 6, 2010 indicating that the dog was suspected to suffer from "porto-systemic shunt and/or microvascular dysplasia" which are congenital defects in the animal. Apparently the only way to verify this would have been to have conducted an autopsy on the dog after it was euthanized, something that was not done. The court must question why a "congenital" defect in the animal would necessarily be discoverable in fourteen days? The dog was Yorkshire Terrier and according to documentation submitted by the claimants, this is a breed which is susceptible to this condition. It does not appear that the defendants ever made this information available to the claimants. On the other hand, it does not appear that the claimants took any steps to do research about the breed prior to purchase.

However, because the sale is regulated by state law, the defendants are required to make certain disclosures. Defendants have submitted a document labeled "Store Guarantee" which lists "liver dysfunction" as one of the conditions for which the seller will guarantee the pet for up to one year. This would appear to be in compliance with the disclosure requirement of the statute and therefore claimants are limited in their damages under the General Business Law to the cost of the dog as the statute does not permit a recovery for reasonable medical bills incurred in excess of that amount.

There is another theory under which the claimants may assert a claim and that is pursuant to the Uniform Commercial Code. Because defendants are "merchants" as defined by UCC §2-104 and dogs are "goods" (UCC §2-105) claimants may pursue a claim of breach of the implied warranty of merchantability irrespective of the existence of a claim pursuant to Article 35-D of the General Business Law (UCC§2-314 and Saxton v Pets Warehouse, Inc., 180 Misc 2d 377 [1999]; see also Sacco v Tate, 175 Misc 2d 901 [1998] which permitted a cause of action for violation of an express warranty (UCC §2-313). In both of those cases the court ruled that the claimant could recover damages pursuant to UCC §2-715 for incidental and consequential damages incurred as a result of the defendant's breach of contract. In fact, GBL§753(5) specifically preserves any other rights a purchaser might have. It provides: "Nothing in this section shall in any way limit the rights or remedies which are otherwise available to a consumer under any other law." [*3]

The General Business Law by its terms limits the damages to the cost of the pet plus the reasonable value of the veterinary fees incurred in diagnosing the problem. The intent is not to expose the seller to an open-ended obligation for veterinary expenses incurred over the life of the pet. The law also seems to be predicated on the assumption that the pet will be able to be treated. In this case, the animal had to be euthanized after the claimant's expended several thousand dollars in attempting to treat him. The problem is deciding to what extent these costs, which are in excess of the purchase price, are reasonable and foreseeable. The costs incurred at the Staten Island Veterinary Group arose immediately upon the claimant getting ownership of the dog and therefore are reasonable and foreseeable. There is no explanation as to why the additional expenses for treatment with the Garden State Veterinary Specialists were necessary.

General Business Law §349 provides for a consumer to obtain damages when a seller engages in deceptive acts and practices in the conduct of "any business, trade or commerce." The Rules of the City of New York require the owner of a pet shop to obtain a permit to operate the business (24 RCNY §161.09). None of the documents issued by the defendants including the contract of sale, the waiver agreement and store guarantee indicate that the defendants are properly licensed by the City of New York. This, when coupled with the fact that there is no such entity as the defendant business registered with the Department of State constitutes a deceptive business practice under the statute. An examination of the "Waiver Agreement" of the defendants reveals that it is not in compliance with the law and is deceptive in its content. It contains the following language:

I have read and understand the law and agree to take My [sic] pet to a Puppy Boutique designated veterinarian for Treatment and diagnosis of any health condition which it may be found to have, or be suspected of having. If I elect to use a veterinarian of my choosing, which is not designated by the Puppy Boutique, without first consulting with the puppy boutique [sic] and receiving prior approval, I will do so at my own expense, assuming all financial responsibility and risk voiding the guarantee provided by the Puppy Boutique.

This waiver is in direct contradiction to the language and protections of the statute. The statute (GBL §753) clearly gives the consumer the right to have the animal examined by a veterinarian of the consumer's choosing (emphasis added). The seller cannot require the consumer to use only a veterinarian selected or recommended by the pet store. The pet store is protected under the legislation by having the right to have a veterinarian selected by the store examine the animal as well if the store disputes the diagnosis of the consumer's veterinarian (GBL§753(4)). The failure to properly advise the claimant as to her rights under the law is an additional "deceptive" business practice pursuant to GBL §349.

In addition, there is no indication that the defendants are in compliance with GBL §753-b (2)(e) which required the pet dealer to issue a statement indicating that the dog has no known congenital or hereditary condition which would adversely affect the health of the dog at the time of sale or if the dog does have a congenital or hereditary condition a statement from a veterinarian that the dog is fit for sale. In addition the veterinarian's statement must verify that the [*4]condition does not require hospitalization and is not likely to require it in the future. There is nothing in the record to establish that the defendants are in compliance with this section. The failure to provide this disclosure is also a violation of GBL §349.

GBL §349(h) permits a consumer to recover actual damages or fifty dollars, whichever is greater and allows the court to impose treble damages up to one thousand dollars for a willful or knowing violation of the law.

Conclusion:

Judgment in favor of claimant Caruso against both defendants (SCR 1640/09). Claimant Caruso has proven her prima facie case. Defendant Puppy Boutique is not a legal entity. Defendant Santo is in default. Claimant has proven her case and established that the defendants are in violation of Article 35-D of the GBL as well as in breach of contract under the UCC. The business dealings of the defendants constitute a violation of GBL §349 so as to entitle the claimant to punitive damages.

Judgment for claimant Caruso against both defendants in the amount of $4,989.10 (which includes $1723.00 the cost of the dog; $2,266.10 for reasonable veterinary expenses and consequential damages under the UCC and $1,000.00 punitive damages under GBL §349), together with interest from the date of sale, March 3, 2008, costs and disbursements.

Judgment for defendants on the claim of Rizzo (SCR 1641/09). Claimant Rizzo has failed to prove her prima facie case. There is no showing that the expenses were necessary for treatment of the dog and that perhaps should not have been incurred in December 2009 when it became apparent that the condition of the dog did not warrant the continued expenditure of monies for treatment. Further, the bills are in claimant Caruso's name with Rizzo saying that she paid them on behalf of Caruso. There is no documentation to show payment was ever made and who actually made it. If the expenses were incurred by Caruso, then she should have been the only claimant and doing so would put the claim over the $5,000.00 jurisdictional amount of the small claims part. Claimant cannot separate causes of action so as to come within the jurisdiction of the court. If claimant wanted to recover all of the expenses, the action should have been brought in day civil court.

Exhibits, if any, will be available at the office of the clerk of the court thirty days after receipt of a copy of this decision.

The foregoing constitutes the decision and order of the court.

Dated: May 3, 2010

Staten Island, NYHON. PHILIP S. STRANIERE

Judge, Civil Court

Note: There appears to be a typographical error in the statute. The second paragraph of GBL§753(1)( c) in reference to a form to be devised by the commissioner for certification by a veterinarian as to the fitness for purchase of the animal concludes with the following sentence: "Such form shall also include the notice prescribed in section seven hundred forty-three of this article." There is no section 743 in Article 35-D "Sale of Dogs and Cats." The article contains sections 752-755. Section 743 would be in Article 35-B "Automobile Broker Business." The existing section 743 refers to the enforcement remedies of the attorney general. Of course, knowing the New York State legislature, it is possible that this is not an error. After all if Charles Schultz can have a beagle pilot a Sopwith Camel, the legislature surely could put a dog behind the steering wheel of an automobile or engage in their sale.