PET LAW - WHEN SOLD A SICK PET

Buckner v. DEMLING, 2024 NY Slip Op 50857 - NY: City Court, Civil Court 2024:

"In this action, plaintiff alleges that she purchased a cat from defendant, a cat breeder. Plaintiff contends that the cat, "Sugar," was terminally ill at the time of sale. Plaintiff brings this action for $8,062.21, representing Sugar's purchase cost and medical expenses for treating Sugar's illness through the first year of his life. Defendant contends that she sold a healthy cat to plaintiff. A trial was conducted on April 8, 2024, where both parties testified. Plaintiff is granted judgment, as follows:

At trial, plaintiff testified that in February 2023, she viewed a profile for Sugar on a website that facilitates the sale of cats (see Pltf Exhs 1 and 2). It was undisputed that Sugar was advertised as healthy, with the language "[k]ittens come with health guarantee, pedigree papers. Will be dewormed and vaccinated" (see Pltf Exh 1). It was also undisputed that in early March 2023, plaintiff purchased Sugar from defendant for $1,700.00, which included transportation fees for delivery to New York City.

Plaintiff testified that soon after delivery she noticed that Sugar was congested and seemed sick. In March 2023, within days of purchasing Sugar, plaintiff took Sugar to a veterinarian. Defendant reimbursed plaintiff for those initial medical expenses in the amount of $387.81.

In late May 2023, Sugar became severely ill. Plaintiff testified that Sugar underwent emergency surgery at an animal hospital to remove fluid from his lungs. At that time, plaintiff became aware that Sugar was diagnosed with "FIP," a terminal illness, and was given a week to live. Plaintiff testified that she was sad and distraught over the diagnosis and spent significant time and energy caring for Sugar over the next month. Also in June 2023, plaintiff testified that she became aware that there were "experimental" treatments that might prolong Sugar's life. She purchased those treatments and began administering them to Sugar, which was time consuming and emotionally taxing.

Plaintiff also testified that in June 2023, she contacted defendant and informed her of the FIP diagnoses. Plaintiff testified that defendant offered to take Sugar back, or if plaintiff wanted to keep Sugar, defendant would return $300.00. Plaintiff testified that she rejected the offer for several reasons. Plaintiff believed that Sugar was too frail to survive a trip back to defendant's home. Plaintiff also believed that defendant may euthanize Sugar. Plaintiff also testified that there was a dispute regarding the terms of returning Sugar to defendant, stating that defendant offered to take Sugar back, but she did not offer a full reimbursement of Sugar's purchase price and medical expenses to date. Consequently, plaintiff opted to keep Sugar in her care. Plaintiff incurred additional medical expenses, which she sues for here.

Defendant testified that she is sorry for the situation and did not intentionally deliver a sick animal to plaintiff. Defendant claimed that in June 2023, after learning of the FIP diagnoses, she offered to take the cat back for a full refund or provide $300.00 to plaintiff if she wanted to keep Sugar.

General Business Law (GBL) §§ 752-755 governs the sale of animals and grants consumers rescission rights 14 days after purchase if a licensed veterinarian "certifies such animal to be unfit for purchase due to illness, a congenital malformation . . ., or the presence of symptoms of a contagious or infectious disease" (GBL § 753).^[1] Options provided to the buyer are that the buyer may: (1) return the animal and obtain a refund of the purchase price plus the costs of the veterinarian's certification; (2) return the animal and receive an exchange animal plus the certification costs; or (3) retain the animal and receive reimbursement for veterinarian services in curing or attempting to cure the animal. For this last option, the statute provides that reimbursement to cure or attempt to cure the animal may not exceed the animal's purchase price (GBL § 753[1][c]).

Here, plaintiff cannot avail herself of this statute as she did not comply with the requirements set forth in GBL § 753 — namely acquiring a certification from a licensed veterinarian that the animal was not fit for purchase. However, the Uniform Commercial Code ("UCC") permits plaintiff recovery beyond the remedies of GBL § 753 (see Saxton v Pets Warehouse, Inc., 180 Misc 2d 377, 378 [App Term, 2d Dept 1999]).

The purchaser of an unhealthy animal may recover damages pursuant to UCC § 2-714 on the theory that a merchant seller breached the warranty of merchantability (see UCC 2-314 [implied warranty]; see Gebbia v Schulder, 32 Misc 3d 144(A) [App Term, 2d, 11th, and 13th Jud Dists 2011]). Cats constitute "goods" within the meaning of UCC § 2-105, and a private breeder may be considered a "merchant" within the meaning of UCC § 2-104(1) (see Appell v Rodriguez, 14 Misc 3d 131[A] [App Term, 9th & 10th Jud Dists 2007]).

UCC § 2-714 provides that "[w]here the buyer has accepted goods . . . [s]he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable." Section 2-714(2) further defines the measure of damages available for breach of warranty as "the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they been as warranted. . . ."

This court credits plaintiff's testimony that she purchased a cat that was ill at the time of sale. Plaintiff testified that she noticed Sugar's congestion within a day or so of purchase and that Sugar was isolated from all other animals immediately after delivery from defendant. Defendant here breached the subject sale agreement and damaged plaintiff as a result. Plaintiff did not receive what she bargained, paid for, and was guaranteed — a healthy cat.

As to damages, this court is guided by the statutes discussed above. GBL § 753 allows for a return and replacement of the animal, or a reimbursement of veterinary costs not exceeding the purchase price of the animal. UCC § 2-714(2) allows for damages beyond the purchase price to bring the goods back into conformity to what was promised. When an unhealthy animal is delivered, courts have refunded the purchase price for the animal (see Cahill v Blume, 8 Misc 3d 1004(A) [Civ Ct, Richmond Cty 2005]; Bazzini v Garrant, 116 Misc 2d 119, (NY Dist Ct, Sixth Dist, Suffolk Cty 1982]). In assessing damages pursuant to the UCC, the Appellate Term reasoned that a buyer is entitled to the purchase price, any sales tax, and the "reasonable cost of veterinarian expenses incurred by plaintiff in the treatment of the animal" (Saxton v Pets Warehouse, Inc., 180 Misc 2d 377 [App Term, 2d Dept 1999]). Therefore, plaintiff here is entitled to Sugar's purchase price and reasonable veterinarian expenses.

Plaintiff conceded that she was advised by a veterinarian that Sugar's illness was terminal, and any treatments were experimental. It stands to reason medical bills prior to the diagnosis are reasonable and those that follow were not. As such, this court awards plaintiff the purchase price and reimbursement of veterinarian bills through Sugar's diagnoses with FIP on May 30, 2023. Accordingly, plaintiff is awarded a judgment of $4,310.15 ($1,700.00 purchase price + $2,610.15 in medical bills incurred on May 30, 3023). This court does not make an award for medical bills incurred in March 2023, as defendant already reimbursed plaintiff for those expenses.

Accordingly, it is hereby ORDERED that plaintiff is awarded $4,310.15, with interest as of March 4, 2023, and costs against defendant.

This constitutes the decision and order of the court.

[1] In addition, pet dealers are required to have animals inspected by a veterinarian prior to sale (GBL § 753-a) and provide consumers with certain information concerning the sale, health of the animal, and pedigree (GBL §§ 753-b, 753-c), which does not appear happened here."

MORE DOG LAW

LAZOVIK v. PUPPY BOUTIQUE, 2022 NY Slip Op 50979 - NY: City Court, Kings Civil Court 2022:

"DEREFIM B. NECKLES, J.

Claimant Tatsiana Lazovik ("claimant") commenced this small claims action against defendant Puppy Boutique a/k/a puppypetite.com ("defendant"), alleging causes of action sounding in breach of contract and breach of warranty. Claimant alleged that defendant sold her an unhealthy puppy and, as a result, she incurred veterinary expenses due to its condition. A small claims trial was held wherein claimant sought to recover damages in the amount of $9,612.00. At the trial, claimant appeared pro se, and defendant appeared by counsel. After considering the testimony of the parties and the documentary evidence submitted at trial, the court makes the following findings of fact and conclusions of law.

Testimony of the Parties

Claimant testified that on November 2, 2019, she purchased a five-month-old female Maltese puppy (the "puppy") from defendant at a cost of $1,357.00. She purchased the puppy for the purpose of breeding and for companionship. Within two months of purchase, the puppy became ill and needed immediate care. On January 17, 2020, claimant took the puppy to her primary care veterinarian at World of Animals of Bethayres in Pennsylvania. Upon examination of the puppy, the veterinarian referred claimant to a Veterinary Specialty and Emergency Center (VSEC) in Levittown, Pennsylvania, for further evaluation of the puppy. After various tests, the veterinarian at VSEC diagnosed the puppy with congenital portosystemic liver shunt and performed surgery on January 30, 2020 to correct the problem. Claimant testified that sometime thereafter, she telephoned defendant regarding the veterinary expenses she incurred. In response, she was advised that the puppy had to be taken to defendant's veterinarian for examination. Claimant further testified that she took the puppy to a local veterinarian facility for treatment because it was very sick and needed immediate attention. She stated that the surgery was necessary to save the puppy's life. She alleged that defendant sold her the puppy knowing that it had a genetic malformation, and despite defendant's representation that it was in good health.

Claimant produced in evidence a report dated January 27, 2020 from VSEC. The report contains the puppy's history, breed, age, and weight. The report also details the different diagnostic examinations performed, and recommended treatments. The report lists under diagnosis and recommendation "[s]olitary congenital portosystemic (splenocaval) liver shunt, mild microhepatia, renomegaly and urine sediment (suspect urates) secondary to shunt." Claimant contended that she is entitled to recover the purchase price of the puppy in the amount of $1,357.00, as well as the cost of the veterinary expenses she incurred in the amount of $8,255.00, for a total sum of $9,612.00.

Defendant's general manager, Benjamin Santiago testified at trial that he sold the puppy to claimant on November 2, 2019. He testified that claimant called the defendant's store and spoke to the receptionist about the veterinary bills and was advised that she could either get a replacement puppy or a refund of the purchase price. The general manager asserted that claimant is not entitled to a reimbursement for the veterinary expenses as she did not comply with the terms of the contract of sale.

The contract of sale between claimant and defendant, dated November 2, 2019, admitted in evidence, provides, inter alia:

"In the event a puppy is found unfit for sale: we request the puppy be produced at our office for further evaluation. (No reimbursements/refunds will be granted until [] veterinarian concludes that there is such unfitness)."

"All puppies are sold as pet quality only; Not for Breeding Purposes."

"NYS General Business Law Section 753 provides that if a pet dealer The Puppy Boutique, the seller wishes to contest a demand for a refund, exchange or reimbursement made by a consumer You, such pet dealer shall have the right to require the consumer You, the purchaser to produce the animal for examination by a licensed veterinarian designated by such dealer The Puppy Boutique, the seller . . . I the purchaser understand. X [claimant's] Initial"

The contract lists the puppy as having "no known disease, illness or congenital or hereditary condition adversely affects the health of the animal at the time of sale."

Relying on General Obligations Law § 753, defendant asserted that claimant is entitled to either a replacement puppy or a refund of the purchase price.

General Business Law § 753

Article 35—D of the General Business Law ("GBL") governs the sale of cats and dogs. GBL § 753(1) provides, in pertinent part, that a pet dealer shall afford the consumer the right to choose one of the following options provided in the statute if, within 180 calendar days following the sale of the pet, a licensed veterinarian certifies that the pet is unfit for purchase due to a congenital malformation which adversely affects the health of the animal:

"(a) The right to return the animal and receive a refund of the purchase price including sales tax and reasonable veterinary costs directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section;

(b) The right to return the animal and to receive an exchange animal of the consumer's choice of equivalent value and reasonable veterinary costs directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section; or

(c) The right to retain the animal and to receive reimbursement from a pet dealer for veterinary services from a licensed veterinarian of the consumer's choosing, for the purpose of curing or attempting to cure the animal. The reasonable value of reimbursable services rendered to cure or attempting to cure the animal shall not exceed the purchase price of the animal. The value of such services is reasonable if comparable to the value of similar services rendered by other licensed veterinarians in proximity to the treating veterinarian. Such reimbursement shall not include the costs of initial veterinary examination fees and diagnostic fees not directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section.

The commissioner by regulations shall prescribe a form for, and the content of, the certification that an animal is unfit for purchase, which shall be provided by an examining veterinarian to a consumer upon the examination of an animal which is subject to the provisions of this section. Such form shall include, but not be limited to, information which identifies the type of animal, the owner, the date and diagnosis of the animal, the treatment recommended if any, and an estimate or the actual cost of such treatment. Such form shall also include the notice prescribed in section seven hundred fifty-four of this article."

GBL § 753(2) provides the following:

"The refund and/or reimbursement required by subdivision one of this section shall be made by the pet dealer no later than ten business days following receipt of a signed veterinary certification as herein required. Such certification shall be presented to the pet dealer not later than three business days following receipt thereof by the consumer."

Further, GBL § 753(5) states:

"Nothing in this section shall in any way limit the rights or remedies which are otherwise available to a consumer under any other law."

Analysis

At trial, claimant did not submit a valid certification from a veterinarian in a form as prescribed by the commissioner, stating that the puppy was unfit for purchase as required by GBL § 753(1). As such, claimant is not entitled to avail herself of the remedies afforded by GBL § 753 (see Sacco v Tate, 175 Misc 2d 901, 902 [App Term, 2nd Dept 1998] [holding that plaintiffs could not recover damages under GBL § 753 due to her failure to comply with the statute]).

However, GBL § 753 does not "limit the rights or remedies which are otherwise available to a consumer under any other law." Another theory under which claimant could recover damages is pursuant to section 2-314 of the Uniform Commercial Code ("UCC"). That section provides that "[u]nless excluded or modified . . . a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind." Dogs have been held to fall within the definition of "goods" as defined in UCC 2-105 and defendant, a dog seller, is a "merchant" within the meaning of UCC 2-104(1) (see Saxton v Pets Warehouse, Inc., 180 Misc 2d 377, 378 [App Term, 2nd Dept]; see also Appell v Rodriguez, 14 Misc 3d 131 [A] [App Term, 9th & 10th Jud Dists 2007]; Badillo v Bob's Pet Center, Inc., 40 Misc 3d 137 [A] [App Term, 2nd, 11th and 13th Jud Dists 2013]).

In the instant case, claimant demonstrated that defendant breached the implied warranty of merchantability under UCC 2-314. The evidence adduced at trial established that defendant sold claimant a puppy that suffered from a congenital condition, which by its nature, had to have existed at the time of sale (see Appell v Rodriguez, 14 Misc 3d 131[A]). Claimant submitted proof establishing that she incurred $8,255.00 in veterinary expenses relating to the treatments of the puppy, including hospitalization and surgery due to its congenital condition. As such, claimant is entitled to recover damages pursuant to UCC 2-314 and 2-714 (see Budd v Quinlan, 19 Misc 3d 66, 68 [App Term, 9th & 10th Jud Dists 2008] ["substantial justice requires . . . [an] award to plaintiff as against defendant, representing the amount she paid to the veterinarian to treat the dog"]; see also Sacco v Tate, 175 Misc 2d at 902; Lombardo v Empire Puppies, 50 Misc 3d 143 [A] [App Term, 2nd, 11th and 13th Jud Dists 2016]). However, since claimant retained possession of the puppy, she is not entitled to a refund of the purchase price.

Conclusion

Based on the forgoing, the court finds in favor of claimant. Damages is awarded to claimant in the amount of $8,255.00.

Accordingly, it is hereby ORDERED that the Clerk is directed to enter judgement in favor of claimant Tatsiana Lazovik against defendant Puppy Boutique a/k/a Puppypetite.com in the amount of $8,255.00, without interest and cost.

This constitutes the decision and order of the court."