Raju v Rue Du Paradis, LLC

Civil Court of the City of New York, Kings County

Decided on March 27, 2026

Index No. SC-002398-25/KI

Chidi A. Eze, J.

This case came up for trial in the Small Claims Part on March 23, 2026. Claimant, Akhira S Raju, appeared pro se, and virtually, while the defendant, Rue Du Paradis, LLC, was represented by counsel, Alev Fanny Karaman, Esq., in person.

BACKGROUND

Defendant specializes in custom made ladies brassieres, which she makes from her store/shop. Claimant testified that she first encountered defendant's business online through Instagram in 2022. In or around November of 2022, Claimant went to defendant's shop to get her measurements taken, after which she ordered five (5) brassieres from defendant for a total price of $736. Around May/June 2023 defendant completed the work and delivered all five (5) brassieres to Claimant. In or around September of 2023, Claimant informed defendant that the brassieres did not properly fit and requested that adjustments be made to them. Defendant agreed to this request.

Defendant testified that she maintained a 30-day return policy, which policy is found on her website, and that Claimant was in violation of this policy by returning the items in September of 2023, even though Claimant received them in June 2023. Claimant countered, though without evidence or proof, that at the time of entering into this agreement with defendant, that policy was not stated on the website, that defendant changed her website after-the-fact to include that disclaimer for purposes of this lawsuit. The court is not convinced by this unsupported claim by Claimant. The court finds that defendant waived this 30-day requirement when she agreed to do the adjustments for the Claimant about 3 months after the initial delivery to Claimant.

In reliance of the acceptance, Claimant returned four of the brassieres back to defendant for adjustments, while retaining one (1). According to the testimonies, on or about January 10, 2024, defendant completed the adjustments and re-delivered the items to Claimant but re-delivered only three of the four items. Defendant testified that she is not sure what happened to one of the items, that she may have misplaced it. Claimant now has four of the brassieres instead of five (5).

Upon receipt of the fixed items, Claimant continued to complain that the adjusted items still did not properly fit. Defendant rebutted that Claimant's loss of weight was to blame. Both sides acknowledge that Claimant lost weight, however, Claimant states that the weight loss was very minimal and that it did not affect her breast size.

Claimant asserts that the only reason she did not return the retained four (4) brassieres to [*2]defendant is because defendant has refused to guarantee full refund upon receipt of the rejected items. Thus, to this day Claimant is still in possession of four out of the five brassieres that she claims are defective.

DISCUSSION

The Court finds that both parties testified credibly as to the facts, with minor variations. However, this court must decide whether Claimant's theory of recovery sound in Rescission or Breach of Warranty.

i. Recission

If Claimant is proceeding under the theory of rescission, meaning complete repudiation of the goods, she must show full and complete return of the goods to the seller. Partial return would not suffice. Under the provisions of the Uniform Commercial Code applicable in New York State, a party seeking refund or compensation for defective products is required to reject the defective product(s) within a reasonable time after their delivery or tender. (NY UCC § 2-602 [2025]).

Here, as at the date of this trial (March 23, 2026), Claimant has still not returned the allegedly rejected items. Also, she kept one of the goods without seeking any adjustment to it.

'[a] buyer's "mere complaint about the goods does not constitute a clear and unequivocal act of rejection . . . [a buyer's use of the goods and failure to return same constituted an acceptance of the goods"' De Marco California Fabrics, Inc. v. Midthrust Imports, Inc., 2010 NY Slip Op 30365(U), 2010 WL 709686 (Supreme Court, New York County 2010) (quoting Maggio Importato, Inc. v. Cimitron Inc., 189 AD2d 654, 592 N.Y.S.2d 325 [1st Dept, 1993])."

Since she did not return the items, Claimant did not properly rescind the contract. "'In an action for rescission solely, the contract may not be affirmed in part and rescinded in part. If it cannot be rescinded in its entirety, it cannot be rescinded at all.'" Goldman v Sontag, 257 A.D. 688, 692, 15 N.Y.S.2d 407, 411 (3rd Dept 1939) (quoting Friedman v. Richman, 213 A.D. 467 (3rd Dept 1925).

ii. Breach of Warranty

If, however, Claimant is proceeding under breach of warranty theory, which standard for recovery is the difference between the value of the goods as they were received and their value as warranted, then her complaint needs to clearly state so. See Joannes Bros. Co. v. Lamborn, 237 NY 207 (Court of Appeals 1923). In the case at bar, the complaint did not so state.

The court understands that Claimant, who is pro se, may not properly articulate her intended theory of recovery in her complaint., however, based upon her trial evidence and testimony, the Court finds that she is seeking complete repudiation of the contract, that she is not seeking affirmance of the contract.

Accordingly, this court finds that the gravamen of Claimant's case is rescission.

And as set forth hereinabove, she failed to properly rescind the contract. Also, by seeking guaranty or assurance before returning the items, Claimant placed a qualification or condition that vitiated rescission. "The tender must be without qualifications or conditions." Gould v. Cayuga, 86 NY 75, 1881 WL 12960 (Court of Appeals 1881).

Moreover, Claimant did not present any evidence showing the difference, in dollar amount or otherwise, between the value of the goods, as received, and their value as warranted. Without this showing, the Court is unable to award any damages for breach of warranty.

Considering the foregoing, the Claimant is not entitled to a refund for her purchase, but is, however, entitled to a refund for the one brassier that the defendant failed to re-deliver after adjustments were made to it. Accordingly, the claimant is entitled to a refund of the sum of $147.20, being the prorated cost of one brassier.

ORDERED that the Claimant have judgement in the amount of $147.20, plus cost, and interest from January 10, 2024.

Dated: March 27, 2026

Hon. Chidi A. Eze

Judge, Civil Court, City of New York