Civil Court of the City of New York, New York County, March 16, 2018

Kenneth Murray, plaintiff pro se.

Craig Kasper, defendant pro se.

Plaintiff/patient Kenneth Murray commenced this action against defendants N.Y.H.D. New York Hearing Doctors (NYHD) and Dr. Craig Kasper^[FN1] to recover $7,000 for "failure to provide proper services" and other allegations.^[FN2] In sum and substance, plaintiff alleges that defendants improperly confiscated a hearing aid submitted for repair. Defendants argue that the hearing aid's manufacturer, to whom the hearing aid was sent for repair, confiscated it pursuant to a warranty agreement. After trial, during which plaintiff, Dr. Kasper, and defendants' employee Toni Sharf testified, and having observed the witnesses and considered the testimony and competent evidence, this court finds in favor of plaintiff in the amount of $3,495.

On October 21, 2015, Dr. Kasper diagnosed plaintiff with bilateral nerve hearing loss and prescribed hearing aids for both ears (tr at 17, line 21 through 18, line 14). Plaintiff paid $6,990, and several days later received two hearing aids, serial numbers 151301366 (the first left hearing aid) and 151301352 (the first right hearing aid) (tr at 11, line 16 through 12, line 7; at 18, lines 1-20; defendants' exhibit 1). At that time, [*2]plaintiff and Dr. Kasper signed a "Hearing Aid Purchase Agreement" (the agreement) which, in relevant part, provided a three-year loss, damage and repair warranty (defendants' exhibit 1).

Although plaintiff testified that he lost his right hearing aid twice, once in December of 2015 and again in July of 2016, and paid $300 each for replacements (tr at 9, line 18 through 10, line 1), the court credits Dr. Kasper's testimony that the first left and right hearing aids were replaced on March 15 and{**59 Misc 3d at 1097} July 18, 2016, by hearing aid serial numbers 160237880 (the replacement left hearing aid) and 160237894 (the replacement right hearing aid), respectively. Dr. Kasper's testimony is corroborated by both the hearing aid manufacturer's records and, further, plaintiff's production of the replacement right hearing aid as an exhibit during trial (tr at 34-35; defendants' exhibits 1, 2A, 2B; plaintiff's exhibit 1).

Accordingly, the court finds that on March 28, 2017, plaintiff submitted the first right hearing aid for repair after he had reported both first hearing aids lost and received replacements for each (defendants' exhibit 2B; tr at 35, lines 1-5). Dr. Kasper sent the hearing aid to the manufacturer, which confiscated the hearing device pursuant to their "Loss and Damage Policy" because "[the submitted hearing aid] was reported as lost to us on March 15, 2016 through an online claim form . . . . This form states that in the event that the original device/s is located and sent to the manufacturer for service, that it will become the property of [the manufacturer]" (tr at 26 et seq.; defendants' exhibit 2B). The same form also states that all claims must be accompanied by a verification that the claimant has "advised the Patient of the [Loss and Damage] terms and conditions, including . . . if a replacement instrument is provided and the original instrument is subsequently located and sent to the manufacturer for service, repair or any other reason, the original instrument shall become the property of [the manufacturer]" (defendants' exhibit 2B).

Plaintiff subsequently commenced this action, arguing that defendants were responsible for the hearing aid's confiscation, and for failure to properly repair the device.

Plaintiff first alleges a quasi-negligence theory: in sum and substance, that defendants' improper actions led to monetary damages stemming from the loss of his hearing aid. The court agrees. "To establish a prima facie case of negligence under New York law, a plaintiff must demonstrate that the defendant owed him or her a duty of reasonable care, a breach of that duty, and a resulting injury proximately caused by the breach" (Elmaliach v Bank of China Ltd., 110 AD3d 192, 199-200 [1st Dept 2013]).{**59 Misc 3d at 1098}

The legislature provided for the regulation of hearing aid dispensers as of July 1, 1999 (General Business Law § 788 et seq.).^[FN3] The legislature was explicit in its intent:

"The legislature finds and declares that existing laws regulating the dispensing of hearing aids have been ineffective in providing adequate protection. To ensure against consumer abuses and thereby protect the public, the legislature determines that more rigorous education, training and business practice standards should be applied to those persons registered to dispense hearing aids pursuant to this article. It is the intention of the legislature to apply standards to more fully protect the general public, and to ensure continued consumer access to safe, reliable and appropriate hearing aid dispensing services." (General Business Law § 788.)

To effectuate this intent, the legislature required that hearing aid dispensers must provide [*3]and maintain a litany of documents, including a "written receipt or purchase agreement" (General Business Law § 798 [11], [14] [b]). The agreement mostly complies with the relevant statutes and regulations; indeed, certain portions of the agreement provide guarantees more generous than the statutory minimum, e.g. the agreement's 75 day adjustment or cancellation period rather than the required 45 (see General Business Law § 798; 19 NYCRR 192.1 et seq.).

However, General Business Law § 798 (11) (f) requires the agreement to set forth "the terms of any written warranty, as required by this article" (see also 19 NYCRR 192.15 [a]). The agreement does provide some information:

"The above NEW hearing instrument/s [sic], with the exception of ear molds, batteries and tubing, are covered by a manufacturer's warranty against defects in material and workmanship from 10/28/15 to 10/28/18. The instrument/s [sic] are covered for a loss & damage period from 10/28/15 to 10/28/18. There will be a fee of $300 for the replacement of each lost hearing instrument during the warranty period, in addition to any earmold and accessory replacement charges" (defendants' exhibit 1).

{**59 Misc 3d at 1099}The same document later states:

"4) Some benefits of purchasing hearing aids with New York Hearing Doctors are: . . .

"• 3-year loss*, damage and repair warranty (available on AGX 5, 7 and 9 technologies; original devices are covered for one-time loss within the original 3-year manufacturer warranty; $300 replacement fee per device applies)."^[FN4]

To the extent that defendants argue that their hands were tied by the manufacturer's confiscation policy, the court agrees, and has no reason to believe that defendants acted in bad faith. However, nothing in the agreement itself provided a basis for confiscation or demonstrated compliance with the strict requirements imposed by the legislature. Defendants have not demonstrated, in other words, that plaintiff ever received any other information about the manufacturer's warranty including, quite consequentially, the confiscation policy. Defendants' failure to provide plaintiff with sufficient information about the confiscation policy resulted in the loss of the hearing aid.

Plaintiff also successfully asserts a breach of contract claim. The elements of such a claim are the existence of a contract, the plaintiff's performance thereunder, the defendant's breach thereof, and resulting damages (Harris v Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010]). The above agreement provisions, read together, are reasonably interpreted as a policy addressing policies for two distinct situations: damaged and lost devices. With respect to repairs, the agreement invokes only the three-year warranty period.

However, the $300 replacement fee and "one-time" limitation are mentioned separately and aimed at lost devices. Accordingly, the court finds that plaintiff had the reasonable expectation, under the agreement, that when he submitted his damaged, first left hearing aid (151301366), that it would be repaired as within the three-year period (Bank of N.Y. v Murphy, 230 AD2d 607, 607 [1st Dept 1996] [rejecting defendant's extrinsic evidence and giving meaning to plaintiff's reasonable interpretation, consistent with the agreement's plain meaning giving effect to all of its terms]).{**59 Misc 3d at 1100}

Given the court's findings, defendant's actions were the proximate cause of plaintiff's loss. Based on the agreed-upon price of $6,990 for two hearing aids, plaintiff is entitled to one half of that amount for the single hearing aid: $3,495.

Based on the foregoing, it is hereby ordered and adjudged that plaintiff has demonstrated, by a preponderance of the credible evidence, entitlement to judgment in the amount of $3,495, plus interest from March 28, 2017.