## Facts

- The plaintiff purchased a dog from the defendant, a private dog breeder.
- The plaintiff alleged the dog was genetically defective, became ill, and died.
- The plaintiff sought to recover the dog’s purchase price and expenses incurred for the dog’s treatment.
- The plaintiff sued in a small-claims action for breach of the implied warranty of merchantability under UCC Article 2.
- The defendant argued the plaintiff could not recover because the plaintiff never notified the defendant that the dog was sick or that it had died.
- After a nonjury trial in the Civil Court of the City of New York, Queens County, the court awarded the plaintiff $2,500.
- The defendant appealed to the Appellate Term.

## Issues

1. Whether a buyer may recover damages for breach of the implied warranty of merchantability under UCC §§ 2-314 and 2-714 when the buyer never notified the seller of the alleged breach as required by UCC § 2-607(3)(a).
2. In a small-claims appeal, whether awarding damages despite the buyer’s complete failure to give UCC notice achieves “substantial justice” consistent with substantive law.

## Decision

- The Appellate Term reversed the judgment, without costs, and dismissed the action.
- The court treated the sale as governed by UCC Article 2 because dogs are “goods” under UCC § 2-105, and a private breeder can be a “merchant” under UCC § 2-104(1).
- Although a dog purchaser may seek damages under UCC § 2-714 based on a merchant seller’s breach of the implied warranty of merchantability (UCC § 2-314), that remedy is available only if the buyer notifies the seller of the breach within a reasonable time after discovery (UCC § 2-607(3)(a)).
- The plaintiff expressly admitted she never notified the defendant that the dog suffered from any condition or that it had died; therefore, the implied-warranty claim failed as a matter of substantive law.
- Because the trial court’s award conflicted with the UCC’s notice requirement, substantial justice was not done between the parties.

## Legal Principles

- Dogs sold in commerce are “goods” within UCC § 2-105, and a private breeder may qualify as a “merchant” within UCC § 2-104(1), bringing the transaction within UCC Article 2.
- A merchant seller’s implied warranty of merchantability under UCC § 2-314 can support a buyer’s claim for damages under UCC § 2-714 for nonconforming goods.
- A buyer’s right to damages for breach of warranty is conditioned on giving the seller notice of breach within a reasonable time after the buyer discovers or should have discovered the nonconformity (UCC § 2-607(3)(a)); failure to give notice bars the warranty remedy.
- On small-claims review, the Appellate Term asks whether “substantial justice” was done according to the rules and principles of substantive law; that standard does not permit recovery where a statutory prerequisite to the claim is absent.

## Conclusion

The Appellate Term reversed the $2,500 small-claims judgment and dismissed the buyer’s implied-warranty action because the buyer never notified the breeder that the dog was ill or had died, and UCC § 2-607(3)(a) makes timely notice a condition to recovering damages for breach of the implied warranty of merchantability.


Gebbia v. Schulder, 939 N.Y.S.2d 740 (2011)