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.