SACCO v. TATE (1998)

Judgment affirmed without costs.

 Plaintiffs commenced the instant action to recover veterinary expenses incurred by reason of the fact that the dog sold to them by defendant was not healthy.   Plaintiffs were not entitled to avail themselves of the remedies afforded by article 35-D of the General Business Law by reason of their failure to comply with the requirements set forth in section 753 thereof.   However, said article does not limit the rights or remedies which are otherwise available to a consumer under any other law (General Business Law § 753[5] ).   As the animal came within the definition of “goods” as set forth in section 2-105 of the Uniform Commercial Code, plaintiffs were entitled to recover damages pursuant to section 2-714 thereof on the theory that defendant breached the express warranty that the animal was healthy at the time of sale or under a theory of breach of the implied warranty of merchantability since defendant was clearly a “merchant” within the meaning of section 2-104(1) of the Code. In light of the testimony of plaintiff Sacco and the itemized paid bills submitted by her, the evidence was sufficient to support the award of the lower court (see, UDCA 1804).   Accordingly, the judgment appealed from should be affirmed.

Plaintiffs failed to comply with section 753 of Article 35-D of the General Business Law. Specifically, they did not produce the dog for examination by a licensed veterinarian designated by the dealer, nor did they furnish the dealer with a certification of unfitness of the dog within three days after their receipt thereof.   Under the circumstances, they were not entitled to a recovery and the action should be dismissed.

MEMORANDUM.

STARK, J.P., and FLOYD, J., concur. COLLINS, J., dissents in a separate memorandum.