## Facts

- Murray Garfinkel bought wall-to-wall carpeting from Lehman Floor Covering Co. for \$1,363.63, and Lehman installed it in Garfinkel’s home on March 8, 1967.
- Immediately after installation, Garfinkel saw an “unsightly condition” in the carpet and promptly complained to Lehman.
- Lehman sent representatives to Garfinkel’s home on two occasions to attempt to correct the problem.
- Lehman’s proof at trial included testimony that the condition was “pressure bands” caused by pressure while the carpet was on a roller, and that the condition had been corrected; Lehman also attributed later discoloration to traffic and normal shading changes typical of velvet carpeting.
- Garfinkel testified that the original pressure-band condition never went away and continued throughout; the trial court accepted Garfinkel’s testimony and found the pressure-band condition was never corrected and the carpet was defective.
- After continued complaints, Garfinkel (through counsel) wrote Lehman on April 12, 1967 rejecting the carpet and demanding that Lehman remove it.
- Garfinkel sent another certified letter on August 15, 1967 again demanding removal of the carpet and a refund; Lehman did not remove the carpet and did not refund the purchase price.
- The carpet remained installed in Garfinkel’s home and was used in the ordinary way, while Lehman took no action; Lehman argued that Garfinkel’s continued possession and use barred rescission and recovery of the price.
- Garfinkel sued to recover the purchase price, relying on UCC § 2-602 and the buyer’s duties after rejection.

## Issues

1. Whether Garfinkel rightfully rejected the installed carpet as defective and was entitled to a refund of the purchase price.
2. Whether Garfinkel’s continued ordinary use of the installed carpet after giving notice of rejection and demanding removal barred rescission and restitution when Lehman failed to retrieve the carpet.

## Decision

- The court found the carpeting was defective because the pressure-band condition persisted and was never corrected.
- The court ruled that Garfinkel had rejected the carpet and was entitled to recover the purchase price.
- The court held that Garfinkel’s continued possession and ordinary use of the installed carpet, after notice of rejection and demands for removal, did not bar recovery where Lehman failed to remove the goods.
- Judgment was entered for Garfinkel in the amount of \$1,363.63.

## Legal Principles

- Under UCC § 2-602, after rightful rejection a buyer must hold the goods with reasonable care for a time sufficient to permit the seller to remove them.
- When goods are installed and the buyer gives clear notice of rejection and requests that the seller remove them, the buyer’s continued ordinary use while waiting for removal does not automatically forfeit the buyer’s right to rescind and recover the price.
- Pre-UCC New York decisions treating retention or use as inconsistent with rescission do not control where UCC Article 2 governs the parties’ rights and duties.

## Conclusion

Because the carpet was found defective and Garfinkel gave timely notice rejecting it and repeatedly demanded that Lehman remove it, the UCC did not treat his continued ordinary use of the installed carpet—while Lehman refused to retrieve it—as a waiver of rejection; Garfinkel therefore could rescind and recover the \$1,363.63 purchase price.


Garfinkel v. Lehman Floor Covering Co., 302 N.Y.S. 2d 167 (1969)