## Facts

- Plaintiffs contracted to buy wood flooring from defendant for $15,124.69 and paid in full.
- Defendant was unable to deliver the flooring.
- Plaintiffs canceled the contract and promptly purchased comparable flooring from another supplier for $19,166.25.
- Plaintiffs sought return of the price paid and “cover” damages of $4,041.56 (the difference between the replacement cost and the contract price), plus consequential damages.
- The trial court awarded only the purchase price and denied summary judgment for cover and consequential damages.

## Issues

1. Under UCC Article 2, when a seller fails to deliver and the buyer promptly and reasonably purchases substitute goods, may the buyer recover cover damages (replacement cost minus contract price) in addition to recovering the price already paid?
2. Whether the appeal from an intermediate order remains independently appealable after entry of final judgment.

## Decision

- The appeal from the intermediate order was dismissed because entry of the final judgment terminated the right to direct appeal from the order, and the issues were reviewable on the appeal from the judgment.
- The judgment was modified to award plaintiffs cover damages of $4,041.56 plus prejudgment interest from June 4, 2001.
- As modified, the judgment was otherwise affirmed.

## Legal Principles

- A contract for the sale of goods is governed by UCC Article 2.
- Upon a seller’s failure to deliver, the buyer may cancel and recover the price paid and may also “cover” and obtain damages under UCC § 2-712.
- Cover requires a good-faith, reasonable substitute purchase made without unreasonable delay.
- Cover damages are measured by the difference between the cost of cover and the contract price, plus allowable incidental or consequential damages and less expenses saved.
- An appeal from an intermediate order is generally subsumed by an appeal from the final judgment, which brings up the prior order for review.

## Conclusion

The court held that because the seller failed to deliver and the buyers promptly made a reasonable substitute purchase, UCC remedies allowed recovery of both the price paid and cover damages equal to the increased cost of replacement goods, with prejudgment interest.


Toto We’re Home, LLC v. Beaverhome.com, Inc., 301 A.D.2d 643, 754 N.Y.S.2d 334 (N.Y. App. Div. 2d Dep’t 2003)