DECISION AND ORDER On February 17, 2021, the Plaintiffs commenced a Small Claims action against the Defendants for veterinary expenses incurred as the result of immediate and necessary treatment for a puppy purchased on December 16, 2020 from Defendant, SHAKE A PAW PUPPY STORE (hereinafter “SHAKE A PAW”). On February 16, 2022, an evidentiary trial was conducted before this Court at which ELENA LOIZIDES appeared and testified on behalf of both Plaintiffs. Upon the evidence presented and the testimony adduced, the following is the Decision and Order of the Court: On December 16, 2020, Plaintiff, GEORGIOS LOIZIDES, entered into a written contract to purchase a nine (9) week old female Shih Tzu puppy from Defendant, SHAKE A PAW, a pet dealer located in Lynbrook, New York. Such contract contained, inter alia, identifying information including the breeder’s name, the birth date, the litter number, the names of the sire and dam, and the microchip identification number. The agreement further contained a specific and separate provision initialed by Plaintiff, GEORGIOS LOIZIDES, which states in applicable part: “As per NYS Law, the maximum of any veterinary bills to be paid by Shake A Paw is limited to the purchase price of your puppy/kitten […].” Such contract also contained a provision requesting that the customer contact one of several animal hospitals listed therein for emergency veterinary treatment in order to defray and/or eliminate the costs of same to the consumer.1 In addition to the aforesaid contract, Plaintiff, GEORGIOS LOIZIDES, was provided with mandated notices and disclosures, including a description of applicable New York State law concerning consumer rights when purchasing a dog or a cat from a pet dealer. At the trial, Plaintiff, ELENA LOIZIDES, testified that shortly after the puppy (now named “Felicity”) arrived at her home on December 16, 2020, she noticed that the animal was lethargic, vomiting, and had diarrhea. After several days without improvement, Plaintiff, ELENA LOIZIDES, sought evaluation and treatment at Animal Emergency Service (“A.E.S”) located in Selden, New York, an animal emergency hospital of her selection based upon its geographic proximity to her residence. Such veterinary establishment does not maintain any affiliation or contract with the Defendant(s). Upon initial examination at A.E.S. on December 20, 2020, the puppy was diagnosed with canine parvovirus disease and standard medical protocol was commenced. The staff at A.E.S. recommended that the animal be admitted for continuous treatment and observation, with discharge only upon improved symptomology and behavior. The medical records maintained by A.E.S., however, indicate that Plaintiff, ELENA LOIZIDES, discharged the animal against medical advice on December 21, 2020. The Plaintiff was made aware at the time that the survival rate for untreated puppies with canine parvovirus disease is extremely low. On December 22, 2020, Plaintiff, ELENA LOIZIDES, returned to A.E.S. as the puppy continued to suffer with vomiting and diarrhea. Medical treatment protocols were resumed. On December 23, 2020, the veterinary records indicate that the animal was lethargic, in pain, and vomiting. Plaintiff, ELENA LOIZIDES, was informed by A.E.S. staff that the patient would likely expire. Later that evening, the puppy died at A.E.S. in the presence of Plaintiff, ELENA LOIZIDES, some seven (7) days after acquisition from Defendant, SHAKE A PAW. On December 26, 2020, the Plaintiffs paid for the individual cremation of the animal by Regency Forest Pet Memorial Park, Middle Island, New York. The Plaintiffs promptly notified Defendant, SHAKE A PAW, of the passing of the animal due to canine parvovirus disease. On January 4, 2021, said Defendant refunded the total sum of $6,060.36 to the Plaintiffs comprised of the cost of the puppy ($5,200.99), the cost of the A.K.C. pet protection bundle ($159.99), the costs of the December 20, 2020 emergency visit fee and parvovirus antigen test administered by A.E.S. ($237.00), and applicable sales tax ($462.38).2 The Defendant denied responsibility for any additional funds expended in an attempt to cure the puppy during the seven (7) days from purchase to expiration. In response thereto, the Plaintiffs commenced the within action seeking reimbursement of expenses incurred from December 20, 2020 through December 26, 2020 for medical care and cremation in the total sum of $4,357.30. General Business Law Section 753 governs the sale of animals to consumers, and states in applicable part: 1. If, within fourteen business days following the sale of an animal subject to this article or receipt of the written notice required by section seven hundred fifty-four of this article, whichever occurred last, a veterinarian of the consumer’s choosing, licensed by a state certifies such animal to be unfit for purchase due to illness or the presence of symptoms of a contagious or infectious disease…the pet dealer shall afford the consumer the right to choose one of the following options: […] (c) The right to retain the animal and to reimbursement from a pet dealer for veterinary service from a licensed veterinarian of the consumer’s choosing, for the purpose of curing or attempting to cure the animal. The reasonable value of reimbursable services rendered to cure or attempting to cure the animal shall not exceed the purchase price of the animal…Such reimbursement shall not include the costs of initial veterinary examination fees and diagnostic fees not directly related to the veterinarian’s certification that the animal is unfit for purchase pursuant to this section (emphases added). In the instant matter, the animal was examined and treated by a veterinarian selected by the consumers as permitted by statute. The resulting diagnosis was canine parvovirus disease which is known to be highly contagious and likely fatal in unvaccinated puppies without early and continuous medical intervention. Following such diagnosis, the Plaintiffs opted to retain the puppy and authorized veterinary services in an attempt to cure (see General Business Law Section 753(1)(c)). As there is no specific medication to eradicate this virus, the protocol implemented by A.E.S. during two (2) separate visits involved intensive care support to stabilize the immune system and manage symptoms. Unfortunately, such efforts were unsuccessful. It is unknown whether the animal would have survived if medical intervention was sought by the Plaintiffs at an earlier date and/or if critical care treatment was permitted to continue at A.E.S. without interruption. General Business Law Section 753 affirmatively limits the financial exposure of the pet dealer to the total cost of the animal and reasonable veterinary costs directly related to the certification of the animal as unfit for purchase. Upon issuance of such written certification, the consumer is entitled to selected statutory relief, i.e. the return of the animal for a full refund including sales tax and reasonable veterinary costs directly related to the veterinarian’s certification that the animal is unfit for purchase (General Business Law Section 753(1)(a)); the exchange of the animal for another of equivalent value and reasonable veterinary costs directly related to the veterinarian’s certification that the animal is unfit for purchase (General Business Law Section 753(1)(b)); or the retention of the animal and reasonable veterinary costs to cure or attempt to cure the animal in an amount not to exceed the purchase price of such animal (General Business Law Section 753(1)(c)). While Defendant, SHAKE A PAW, encouraged the Plaintiffs to have the animal treated at no cost at one of its designated veterinary facilities, the decision to retain the animal and to receive medical treatment at A.E.S. remained at all times within the discretion of the Plaintiffs. See e.g. Rizzo v. Puppy Boutique, 911 N.Y.S.2d 695 (Civil Ct. Richmond Co. 2010). Notwithstanding the foregoing, General Business Law Section 753 does not provide for reimbursable veterinary expenses that exceed the cost of the animal plus the reasonable cost of the necessary certification when such animal is either retained or returned by the consumer. Consequently, as any financial exposure above this threshold must be borne by the Plaintiffs under applicable law, the within claim seeking reimbursement of veterinary expenses in excess of the sum refunded to the Plaintiffs on January 4, 2021 must be denied. Uniform District Court Act Section 1804 provides, inter alia, that the Court “shall conduct hearings upon small claims in such manner as to do substantial justice between the parties according to the rules of substantive law and shall not be bound by statutory provisions or rules of practice, procedure, pleading or evidence…[.]” It is clear that the Plaintiffs experienced significant distress as a result of the suffering and untimely demise of their puppy and the unintentional exposure of their other resident dogs to a potentially lethal canine virus. It is also reasonable to conclude that this common infectious disease could have been identified by an experienced pet dealer prior to the sale and release of such animal to a consumer. Based upon the totality of the circumstances in this matter, the Court deems it appropriate that the Plaintiffs be reimbursed by Defendant, SHAKE A PAW, for the cost associated with the individual cremation of their puppy, Felicity. Accordingly, after due deliberation, it is ORDERED, that a Judgment shall be entered against the Defendant, SHAKE A PAW PUPPY STORE, in the sum of $282.43, together with costs and interest calculated from December 26, 2020; and it is further ORDERED, that as the Plaintiffs have failed to establish privity with the remaining Defendants, the claims against such parties are hereby dismissed in their entirety. The foregoing constitutes the Decision and Order of the Court. Dated: March 14, 2022
