SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department
December 19, 2011
SARAH J. MILLIGAN,
SHULY WIGS AND SHULY'S WIGS, INC.,
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered August 13, 2009.
Milligan v Shuly Wigs
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on December 19, 2011
PRESENT: WESTON, J.P., GOLIA and RIOS, JJ
The judgment, after a non-jury trial, awarded plaintiff the principal sum of $2,163.
ORDERED that the judgment is modified by providing that, within 30 days of the date of the order entered hereon, plaintiff shall return the wig in question to defendants; otherwise the judgment is reversed, without costs, and judgment is directed to be entered in favor of defendants dismissing the action; as so modified, the judgment is affirmed, without costs.
In this small claims action, plaintiff seeks to recover the price of a wig she purchased from defendants. At a non-jury trial, plaintiff testified that the wig was defective and that defendants' two attempts to repair the wig had failed. Plaintiff testified that her further efforts to obtain repair from defendants were ineffective. She stated that she notified defendants that she could not wait any longer, and thereafter purchased a new wig. Defendants' witness testified that the store had a policy against giving refunds, of which plaintiff was aware. He contended that plaintiff's remedies were therefore limited to repair or replacement of the wig. The trial court accepted plaintiff's version of the underlying events and awarded her the principal sum of $2,163, which was the purchase price of the wig.
Our review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (CCA 1807). Resolution of issues of credibility is for the trier of fact, as it had the opportunity to observe and evaluate the testimony and demeanor of the witnesses (see McGuirk v Mugs Pub, 250 AD2d 824 ; Richard's Home Ctr. & Lbr. v Kraft, 199 AD2d 254 ), and its decision should not be disturbed on appeal unless it is obvious that its determination could not have been reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 ). The deference normally accorded to the credibility determinations of a trial court "applies with greater force" in small claims proceedings, given the limited scope of review (Williams v Roper, 269 AD2d 125, 126 ; CCA 1807).
The Civil Court correctly awarded the purchase price to plaintiff and was not barred from doing so by defendants' policy against giving refunds. Where, as here, a vendor prohibits refunds and limits the purchaser's remedies to repair or replacement of its goods, the remedy fails of its essential purpose if a delay or failure adequately to repair or replace the goods in a reasonable time deprives the plaintiff of the substantial benefit of her bargain (Cayuga Harvester, Inc. v Allis-Chalmers Corp., 95 AD2d 5, 11 ). "[W]hether circumstances have caused a limited remedy to fail of its essential purpose . . . is a question of fact . . . necessarily to be resolved upon proof of the circumstances occurring after the contract is formed" (id. at 10-11; see also Laidlaw Transp. v Helena Chem. Co., 255 AD2d 869, 870 ; Scott v Palermo, 233 AD2d 869, 869-70 ; Belfont Sales Corp. v Gruen Indus., 112 AD2d 96, 98-99 ). Where an exclusive or limited remedy fails of its essential purpose, a buyer may seek remedies as provided for in the Uniform Commercial Code (UCC 2-719 ), which, under the circumstances presented, include a refund of the purchase price (see UCC 2-711 ) following plaintiff's revocation of acceptance of the wig (see UCC 2-608).
In these circumstances, we find that the Civil Court properly concluded that defendants' limited remedy of repair or replacement had failed of its essential purpose, and that the monetary award in favor of plaintiff rendered substantial justice between the parties according to the rules and principles of substantive law (CCA 1804, 1807).
However, substantial justice also requires that the item for which plaintiff is obtaining a refund be returned to the seller (CCA 1805 [a]; 1807; see Garber v New Idea by S.E.P., Inc., 20 Misc 3d 142[A], 2008 NY Slip Op 51684[U] [App Term, 2d & 11th Jud Dists 2008]; Dweyer v Montalbano's Pool & Patio Ctr, Inc., 10 Misc 3d 135[A], 2005 NY Slip Op 52122[U] [App Term, 2d & 11th Jud Dists 2005]).
Accordingly, the judgment in favor of plaintiff is modified by providing that within 30 days of the date of the order entered hereon, plaintiff shall return the wig to defendants. In the event that plaintiff fails to return the wig, the judgment is reversed and judgment is directed to be entered in favor of defendants dismissing the action.
Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: December 19, 2011
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