Badillo v Bob's Tropical Pet Ctr., Inc. (2013 NY Slip Op 51386(U))

Badillo v Bob's Tropical Pet Ctr., Inc.

2013 NY Slip Op 51386(U) [40 Misc 3d 137(A)]

Decided on August 8, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Yarikza Badillo, Respondent, —

against

Bob's Tropical Pet Center, Inc., Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Carol R. Feinman, J.), entered January 30, 2012. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $978.

Plaintiff commenced this small claims action to recover the sum of $978 for veterinarian expenses that she had incurred after she had purchased a puppy from defendant. After a nonjury trial, the Civil Court awarded plaintiff the principal sum of $978. Upon a review of the record, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (CCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]).

The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with [*2]greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d at 126).

Since the puppy came within the definition of "goods" as set forth in UCC 2-105, and since defendant was a "merchant" within the meaning of UCC 2-104 (1), plaintiff was entitled to recover damages under a theory of breach of the implied warranty of merchantability (see UCC 2-314; Rossi v Puppy Boutique, 20 Misc 3d 132[A], 2008 NY Slip Op 51449[U] [App Term, 2d & 11th Jud Dists 2008]; Budd v Quinlan, 19 Misc 3d 66 [App Term, 9th & 10th Jud Dists 2008]; Appell v Rodriguez, 14 Misc 3d 131[A], 2007 NY Slip Op 50051[U] [App Term, 9th & 10th Jud Dists 2007]; Saxton v Pets Warehouse, 180 Misc 2d 377 [App Term, 9th & 10th Jud Dists 1999]), and was not limited to pursuing her remedies under article 35-D of the General Business Law, governing the sale of dogs and cats (see General Business Law § 753 [5]; Hardenbergh v Schulder, 25 Misc 3d 141[A], 2009 NY Slip Op 52454[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As the record demonstrates that defendant breached the implied warranty of merchantability, plaintiff was entitled to recover the resulting veterinary expenses (UCC 2-714, 2-715).