Nuijens v. Novy

144 Misc. 2d 453

 

RULE:

N.Y. Gen. Bus. Law § 742(1) provides, in part that if, within 14 days following the sale of an animal subject to this article, such as a dog or cat, a veterinarian of the consumer's choosing, licensed by a state certifies such animal to be unfit for purchase due to illness, a congenital malformation which adversely affects the health of the animal, or the presence of symptoms of a contagious or infectious disease, the pet dealer shall afford the consumer the right to choose 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. 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.

FACTS:


Defendant seller was a farmer who sold a single litter of puppies. Plaintiff purchaser took the dog she bought to the veterinarian within five days of the purchase of the dog and discovered the dog had a urinary tract infection. She elected not to notify the seller and to keep the dog. Before 14 days had passed, she discovered that the illness was more serious and obtained certification from the veterinarian. She never showed the certification to the seller until the court date. The purchaser filed this small-claims action seeking reimbursement from the seller for her veterinary costs to cure the dog under N.Y. Gen. Bus. Law § 742(1)  The court dismissed the purchaser's complaint for failure to state a cause of action upon which relief could have been granted for reimbursement of veterinary services.

ISSUE:

Is plaintiff entitled to reimbursement of veterinary expenses?

ANSWER:

No.

CONCLUSION:

Upon review, the court held that § 742(1) did not apply because the seller was not a pet dealer as defined in the statute. Because the statute indicated in § 742(5) that it was not an exclusive remedy, the court looked to the Uniform Commercial Code (UCC). The court found that the dog was a "good" within the meaning of the UCC at § 2-105, but that the seller was not a "merchant" within the meaning of § 2-104(1) of the UCC. The court further determined that the seller gave an express warranty, with which the purchaser elected not to comply.

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