Opinion
XXXXX
01-27-2023
Paulette PETTI, Plaintiff, v. Jessica DERIDDER, Defendant.
Paulette Petti, plaintiff pro se. Jessica Deridder, defendant pro se.
Paulette Petti, plaintiff pro se.
Jessica Deridder, defendant pro se.
James P. Mulley Jr., J. The question presented in this small claims action is whether an individual who purchases goods on Facebook Marketplace is entitled to damages if the goods are defective. In this case, the court finds that defendant breached an express warranty she made regarding the condition of the goods and, therefore, plaintiff is entitled to a refund of the purchase price.
Facebook Marketplace is an e-commerce platform that connects sellers and buyers of goods. Individuals with an active Facebook account can attempt to sell an item by creating a public listing that can be viewed by anyone on Facebook. The seller typically photographs and provides a description of the item listed. Interested buyers may then contact the seller through Facebook Messenger, an instant messaging application that allows the parties to privately communicate with each other.
In October 2022, Defendant listed a washer and dryer on Facebook Marketplace. The appliances were described as a "Kenmore Elite Oasis Washer & Electric Dry Set." Plaintiff saw the listing and contacted defendant via Facebook Messenger. At one point, plaintiff asked, "They are both in great working order correct?" Defendant responded, "They both work great and are quiet." The parties negotiated a sale price of $500 for the washer and dryer, and arranged a mutually convenient time for plaintiff to pick up the appliances.
The day after plaintiff picked up the appliances, she sent a message to defendant advising her that the washer was leaking. She explained that after she discovered the leak a friend took the back plate off the washer and replaced a hose. The washer still did not work properly. Plaintiff then hired a repairman who determined that the computer board was malfunctioning and estimated it would cost more than $600 to fix. Plaintiff contacted defendant on Facebook Messenger and demanded that she refund the $250 purchase price of the washer, stating, "I do not have a working washer and you told me it was fine and all in good working order." Defendant refused to refund the money, insisting that the washer "was 100% working the way it should have been prior to leaving here." Defendant suggested that plaintiff most likely broke something when she transported the washer to her home or when her friend opened the back of the machine to replace the hose.
Plaintiff then filed this action seeking damages in the amount of $250.
LEGAL ANALYSIS
Small claims court is designed to provide litigants with a simple, informal and inexpensive procedure for the prompt determination of claims. Although procedural rules may be relaxed, cases must be decided according to the rules and principles of substantive law ( Uniform Justice Court Act §§ 1802, 1804 ). Under New York law, the transaction at issue constitutes a contract for the sale of goods governed by Article 2 of the Uniform Commercial Code (UCC). Resolution of this dispute turns on whether defendant breached any of the warranties provided for in UCC Article 2.
Three provisions of the UCC pertain to a seller's warranty for the quality of the goods sold. UCC § 2-314 and UCC § 2-315 deal with implied warranties. UCC § 2-313 deals with express warranties.
UCC § 2-314 - Implied Warranty of Merchantability
The implied warranty of merchantability is found in UCC § 2-314. Under this section a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Stated differently, the implied warranty of merchantability is a guarantee that goods sold by merchants are reasonably fit for the intended purpose for which such goods are used ( UCC § 2-314[1] [c] ; Fischer v. Zervas , 73 Misc. 3d 1207, 2021 WL 4736905 [Sup. Ct., Warren County 2021] ; Ball v. Home Depot , 69 Misc. 3d 1213, 2020 WL 6555145 [Sup. Ct., Suffolk County 2020] ). The status of the seller is critical in determining the applicability of the implied warranty of merchantability. Merchants are deemed to give an implied warranty of merchantability; non-merchants are not.
UCC § 2-104[1] defines a merchant as a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his own occupation holds himself out as having such knowledge or skill.
Here, the defendant is not a merchant. Defendant does not regularly deal in the sale of washing machines, nor does she hold herself out as having knowledge or skill peculiar to goods of this kind. Defendant would more accurately be described as a casual or inexperienced seller ( UCC § 2-104, Comment 1). Since defendant is not a merchant, no implied warranty of merchantability arises from this transaction.
See e.g. , (Gottlieb v. DeCillis, 59 Misc.3d 146, 2018 WL 2434349 [App. Term 2018] ) seller of used car was not a merchant of motor vehicles, and therefore no implied warranty of merchantability arose with the sale; (Bulsara v. Chami, 51 Misc. 3d 143, 2016 WL 2584627 [App. Term 2016] ) seller of used car was not a merchant of motor vehicles, and therefore no implied warranty of merchantability arose with the sale; (Colopy v. Pitman Mfg. Co., 206 A.D.2d 864, 615 N.Y.S.2d 208 [4th Dept. 1994] ) occasional seller of hydraulic boom truck was not merchant with respect to goods of that kind and could not be liable for breach of implied warranty of merchantability.
UCC § 2-315 - Implied Warranty of Fitness for Particular Purpose
UCC § 2-315 provides: "Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose." The implied warranty of fitness for a particular purpose usually applies to merchants, but unlike the implied warranty of merchantability, it may apply to non-merchants where justified by the particular circumstances. In any event, for a claim to arise under this section, it must be established that the buyer was relying upon the seller's skill and judgment to select and furnish the goods ( Saratoga Spa and Bath, Inc . v. Beeche Systems Corp., 230 A.D.2d 326, 656 N.Y.S.2d 787 [3rd Dept. 1997] ; Fischer v. Zervas , 73 Misc. 3d 1207, 2021 WL 4736905 [Sup. Ct., Warren County 2021] ).
Although normally the warranty will arise only where the seller is a merchant with the appropriate skill or judgment, it can arise as to non-merchants where this is justified by the particular circumstances (UCC § 2-315 [Official Comment 4])
Here, there is nothing in the communications between the parties on Facebook Messenger or in the trial testimony that would support a finding that plaintiff relied upon defendant's skill and judgment to select the washing machine. Therefore, plaintiff is not entitled to recovery under the implied warranty of fitness for a particular purpose ( McCarthy v. Checchin, 18 Misc. 3d 1134, 2004 WL 5536487 [Sup. Ct., Clinton County 2004] ; Kates Millinery, Ltd. v. Benay-Albee Corp , 114 Misc. 2d 230, 450 N.Y.S.2d 975 [Civ. Ct., Queens County 1982], cf. Simmons v. Washing Equipment Technologies , 51 A.D.3d 1390, 857 N.Y.S.2d 412 [4th Dept. 2008] ).
UCC § 2-313 - Express Warranty
Under UCC § 2-313, a seller who makes representations about the condition of the goods sold can be liable for breach of express warranty. Any seller—merchant or non-merchant — may make an express warranty.
UCC § 2-313 provides:
(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model. (2) It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty.
See also, Bell v. Manhattan Motorcars, Inc. , 2008 WL 2971804 (S.D. NY 2008),
New York courts have found that express warranties may be formed where the representations were made in advertisements ( Murrin v. Ford Motor Co., 303 A.D.2d 475, 756 N.Y.S.2d 596 [2nd Dept. 2003] ). For example, in ( Eddington v. Dick, 87 Misc. 2d 793, 386 N.Y.S.2d 180 [City Court, Geneva 1976] ) defendant offered a used refrigerator for sale by means of a classified advertisement in the local newspaper. The court found that the advertisement, which described the refrigerator as being in "good condition", created an express warranty.
New York Courts have also found express warranties existed where the representations about the goods sold were made during negotiations or bargaining prior to the sale.
For instance, in ( Carter v. Gilbert, 18 Misc. 3d 1112, 2008 WL 72934 [Justice Ct., Ossining 2008] ), defendant placed an advertisement in the newspaper regarding the sale of a boat. Plaintiff responded to the advertisement and viewed the boat at defendant's premises. During negotiations, defendant told plaintiff that the motor was "working great." After consummating the sale, plaintiff discovered a crack in the engine block. The court outlined the plaintiff's burden in a breach of express warranty case:
In order to prevail for breach of an express warranty, a plaintiff must establish that there was an affirmation of fact or a promise by the seller the natural tendency of which was to induce the buyer to purchase Generalized statements
and exaggerated claims made by a seller about a product, which a reasonable consumer would not rely upon as a statement of fact, do not create an express warranty. However, where the seller makes representations of fact about specific characteristics of the product, which were relied upon by the buyer as part of the basis of the bargain, an express warranty is created (Carter v. Gilbert , 18 Misc. 3d at 1114 [internal citations omitted])
The court found that the defendant's representations made during negotiations concerning the condition of the boat's motor were reasonably relied upon by the plaintiff as part of the bargain and, therefore, were express warranties under UCC § 2-313. To summarize, an examination of New York cases interpreting UCC § 2-313 reveals that an affirmation of fact sufficient to create an express warranty may be made by a merchant or a non-merchant, may be written or oral, and may be made in an advertisement for the sale of the product or during negotiations for the purchase of the product.
See also , Cumo v. Bray , 57 Misc. 3d 808, 62 N.Y.S.3d 746 [City Ct. Glens Falls 2017], where the court found an express warranty existed where defendant placed an advertisement for a used car on Craigslist and during negotiations told plaintiff the car was in "good working condition with no mechanical problems"; McGregor v. Dimou , 101 Misc. 2d 756, 422 N.Y.S.2d 806 [Civ. Ct. N.Y. County 1979] where the seller advertised a vehicle as being "in very good condition" and during negotiations denied that the car had ever been in an accident; Ekizian v. Capurro, 111 Misc. 2d 372, 444 N.Y.S.2d 361 [Town of Ossining 1981] ) where the defendant made oral representations that "the engine runs good"; Kates Millinery v. Benay-Albee Corp , 114 Misc. 2d 230, 450 N.Y.S.2d 975 [Civ. Ct. N.Y.C., Queens County] where defendant told plaintiff that a pressing machine used for manufacturing headwear was "in perfect condition and one year old".
In this case, there is no evidence that the advertisement — the listing on Facebook Marketplace - created any express warranties. However, the negotiations regarding the sale conducted via instant messaging on Facebook Messenger surely did. Defendant's statement that the washer and dryer "work great" was an affirmation of fact about the appliances that was likely to induce plaintiff to purchase. Defendant's representation that the appliances "work great" became part of the basis of the bargain and was relied upon by plaintiff. Consequently, an express warranty that the appliances were in working order was created and plaintiff is entitled to damages for breach of that express warranty.
Although comment 3 to UCC § 2-313 suggests otherwise, there is appellate authority holding that a cause of action to recover for breach of an express warranty requires proof that plaintiff relied on the express warranty (JC Constr.Mgt. Corp. v. Nassau–Suffolk Lbr & Supply Corp , 15 A.D.3d 623, 789 N.Y.S.2d 903 [2nd Dept. 2005] ).
In any event, in this case, the proof was sufficient to show that plaintiff relied upon the affirmation. Specifically, the evidence showed that after plaintiff discovered that the washing machine was defective, she sent an instant message to defendant stating, "I do not have a working washer and you told me it was fine and in good working order." That statement tends to prove plaintiff's reliance on defendant's affirmation regarding the quality of the appliance.
While it is true that an affirmative showing by the seller that the loss resulted from some action or event following delivery of the goods can operate as a defense ( 93 NY Jur. 2d Sales § 175 ), defendant made no such affirmative showing in this case. Defendant's suggestion that the damage was caused by plaintiff during the transport of the appliances or when the hose was replaced is mere speculation. Although defendant testified that she had video and other proof that the washer worked at the time of the sale, no such evidence was produced at trial. Furthermore, the nature of the required repairs suggest that the damage existed at the time of sale. Consequently, there was no affirmative showing by defendant that plaintiff caused the damage to the washing machine.
Accordingly, plaintiff is entitled to an award of $250, plus the filing fee of $10, for a total judgment in the amount of $260.
This constitutes the decision and judgment of the Court.