Sacco v. Tate

Appellate Terms of the Supreme Court of New York

Sacco v. Tate

175 Misc. 2d 901, 672 N.Y.S.2d 618, 1998 N.Y. Misc. LEXIS 142

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 14, 1998

StatusPublished

Cited by2 cases

This text of 175 Misc. 2d 901 (Sacco v. Tate) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sacco v. Tate, 175 Misc. 2d 901, 672 N.Y.S.2d 618, 1998 N.Y. Misc. LEXIS 142 (N.Y. Ct. App. 1998).

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Opinions

[902]*902OPINION OF THE COURT

Memorandum.

Judgment affirmed without costs.

Plaintiffs commenced the instant action to recover veterinary expenses incurred by reason of the fact that the dog sold to them by defendant was not healthy. Plaintiffs were not entitled to avail themselves of the remedies afforded by article 35-D of the General Business Law by reason of their failure to comply with the requirements set forth in section 753 thereof. However, said article does not limit the rights or remedies which are otherwise available to a consumer under any other law (General Business Law § 753 [5]). As the animal came within the definition of “goods” as set forth in section 2-105 of the Uniform Commercial Code, plaintiffs were entitled to recover damages pursuant to section 2-714 thereof on the theory that defendant breached the express warranty that the animal was healthy at the time of sale or under a theory of breach of the implied warranty of merchantability since defendant was clearly a “merchant” within the meaning of section 2-104 (1) of the Uniform Commercial Code. In light of the testimony of plaintiff Sacco and the itemized paid bills submitted by her, the evidence was sufficient to support the award of the lower court (see, UDCA 1804). Accordingly, the judgment appealed from should be affirmed.

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[902]*902OPINION OF THE COURT

Memorandum.

Judgment affirmed without costs.

Plaintiffs commenced the instant action to recover veterinary expenses incurred by reason of the fact that the dog sold to them by defendant was not healthy. Plaintiffs were not entitled to avail themselves of the remedies afforded by article 35-D of the General Business Law by reason of their failure to comply with the requirements set forth in section 753 thereof. However, said article does not limit the rights or remedies which are otherwise available to a consumer under any other law (General Business Law § 753 [5]). As the animal came within the definition of “goods” as set forth in section 2-105 of the Uniform Commercial Code, plaintiffs were entitled to recover damages pursuant to section 2-714 thereof on the theory that defendant breached the express warranty that the animal was healthy at the time of sale or under a theory of breach of the implied warranty of merchantability since defendant was clearly a “merchant” within the meaning of section 2-104 (1) of the Uniform Commercial Code. In light of the testimony of plaintiff Sacco and the itemized paid bills submitted by her, the evidence was sufficient to support the award of the lower court (see, UDCA 1804). Accordingly, the judgment appealed from should be affirmed.

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Bluebook (online)

175 Misc. 2d 901, 672 N.Y.S.2d 618, 1998 N.Y. Misc. LEXIS 142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sacco-v-tate-nyappterm-1998.

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