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Dogs have been held to constitute goods' within the meaning of section 2-105 of the Uniform Commercial Code, and a private breeder, is a merchant' within the meaning of UCC 2-104 (1). A dog purchaser may recover damages pursuant to UCC 2-714 on the theory that a merchant seller breached the implied warranty of merchantability. This remedy, however, is available only where the buyer notifies the seller of its breach within a reasonable time after it discovers or should have discovered the nonconformity of the goods.
Kelly Gebbia filed a small claims action, alleging that Robin Schulder, a dog breeder, breached the implied warranty of merchantability when she sold Gebbia a genetically defective dog. Gebbia sought to recover the purchase price of the dog and the expenses she incurred for its treatment. Robin asserted that Gebbia could not recover damages because she never notified Schulder that the dog suffered from any condition or that it had died. After a nonjury trial, the Civil Court awarded Gebbia the principal sum of $2,500.
Did the civil court err in ruling in favor of Gebbia?
Gebbia specifically averred that she had never notified Schulder that the dog suffered from any condition or that the dog had died. As a result, Gebbia’s cause of action for breach of the implied warranty of merchantability must fail.