Flood v. Bulldogs of Long Is., Inc.

Flood v Bulldogs of Long Is., Inc. (2022 NY Slip Op 50917(U)) [*1] Flood v Bulldogs of Long Is., Inc. 2022 NY Slip Op 50917(U) [76 Misc 3d 132(A)] Decided on September 9, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on September 9, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : ELIZABETH H. EMERSON, J.P., JERRY GARGUILO, TIMOTHY S. DRISCOLL, JJ 2022-11 S C Demi Flood, Respondent, and Joseph Flood, Plaintiff, against Bulldogs of Long Island, Inc. and Diego Diaz, Appellants. Zabell & Colotta, P.C. (Saul D. Zabell and Ryan Eden of counsel), for appellants. Demi Flood, respondent pro se. Appeal from a judgment of the District Court of Suffolk County, Second District (Garrett W. Swenson, Jr., J.), entered June 14, 2021. The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiff Demi Flood the principal sum of $5,000. ORDERED that the judgment, insofar as appealed from, is modified by vacating so much thereof as is against defendant Diego Diaz and by dismissing so much of the action as is asserted against him; as so modified, the judgment, insofar as appealed from, is affirmed, without costs. Plaintiffs commenced this small claims action against Bulldogs of Long Island, Inc. (Bull Dogs), and its owner, Diego Diaz, to recover $5,000, alleging that Bulldogs sold them a puppy that was sick and that they spent over $5,000 on veterinary bills before the puppy died.[FN1] At a nonjury trial, the evidence demonstrated that Demi Flood (plaintiff) had purchased a puppy from defendant Bulldogs for the price of $3,200. Within a week of the purchase, the [*2]puppy became very ill and passed away. Plaintiff's veterinarian bill for the care of the puppy that week totaled in excess of $10,000. While Bulldogs refunded the puppy's purchase price, plaintiff sought reimbursement of the puppy's medical expenses. When Bulldogs and its owner, defendant Diego Diaz, refused, plaintiff commenced this action. Following the trial, the District Court awarded plaintiff the principal sum of $5,000 as against both defendants. In a small claims action, our review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UDCA 1807; see UDCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d at 126). While plaintiff was entitled to a refund of the purchase price of the puppy, pursuant to General Business Law § 753 (1) (a), plaintiff was not limited to that remedy (see General Business Law § 753 [5]). She was also able to recover veterinary expenses under the Uniform Commercial Code. A puppy falls within the definition of "goods" as set forth in UCC 2-105, and defendant Bulldogs was a "merchant" within the meaning of UCC 2-104 (1). As the record demonstrates that the puppy was sick at the time of the sale, plaintiff was required, under Agriculture and Markets Law § 353, to furnish the puppy sustenance, which includes veterinary care, or be subject to prosecution (see People v Roth, 73 Misc 3d 147[A], 2021 NY Slip Op 51264[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]). Thus, plaintiff was entitled to recover damages, including consequential damages, under a theory of breach of the implied warranty of merchantability (see UCC 2-314; 2-714; 2-715; Lombardo v Empire Puppies, 50 Misc 3d 143[A], 2016 NY Slip Op 50218[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Badillo v Bob's Tropical Pet Ctr., Inc., 40 Misc 3d 137[A], 2013 NY Slip Op 51386[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Hardenbergh v Schulder, 25 Misc 3d 141[A], 2009 NY Slip Op 52454[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Rossi v Puppy Boutique, 20 Misc 3d 132[A], 2008 NY Slip Op 51449[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Budd v Quinlan, 19 Misc 3d 66 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]; Appell v Rodriguez, 14 Misc 3d 131[A], 2007 NY Slip Op 50051[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2007]; Saxton v Pets Warehouse, 180 Misc 2d 377 [App Term, 2d Dept, 9th & 10th Jud Dists 1999]). It was unrefuted that the corporate defendant, rather than Diaz, owned the store and sold the puppy to plaintiff. Consequently, there was no basis for imputing liability to Diaz, the individual defendant. The District Court, a court of limited jurisdiction, lacked jurisdiction to grant the equitable relief of piercing the corporate veil, even assuming that a basis for that relief existed (see Battle v Smith, 35 Misc 3d 126[A], 2012 NY Slip Op 50566[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Accordingly, the judgment, insofar as appealed from, is modified by vacating so much thereof as is against defendant Diego Diaz and by dismissing so much of the action as is asserted against him. EMERSON, J.P., GARGUILO and DRISCOLL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: September 9, 2022 Footnotes Footnote 1: During the trial, the court dismissed the action, insofar as it was asserted by Joseph Flood, on the ground that Demi Flood was the sole purchaser of the puppy, leaving Demi Flood as the only plaintiff.