DECISION AND ORDER Claimants Washington Gomez (Gomez) and Marie Gonzalez (Gonzalez) commenced this small claims action on May 2, 2023, with the filing of the Statement of Claim, alleging, “paid for kitchen cabinets upon purchased was promised wood and received damages.” Claimant is seeking ten thousand dollars ($10,000) against Defendants, Wood Floor Planet Inc., (Wood Floor), Eddie Laboy (Laboy) and Brendan Rivera (Rivera). Discussion The trial of this matter was held on March 14, 2024. Gomez and Gonzalez appeared pro-se, and Defendants Laboy and Rivera appeared pro-se and on behalf of Wood Floor Planet Inc. Defendant Laboy represented that he is the owner of Wood Floor and requested to proceed pro se for the corporation as he had not obtained counsel. Pursuant to the Lower Court Act §1809(2), the Court in its discretion granted defendants request to proceed pro se for Wood Floor. Gonzalez is a New York City police officer and Gomez, a home maker. Defendants are knowledgeable cabinet salesmen. Gonzalez testified that she and her husband, Gomez, sought to purchase “solid wood” kitchen cabinets for their home kitchen. Gomez wanted to surprise Gonzalez and searched for the cabinets on his own. In August 2023, Gomez spoke with Laboy, about the type of cabinets the Claimants desired. Laboy testified that Gomez went to a showroom of another location on September 18, 2023, picked out the cabinets that he desired, and sent a photo of the cabinets he selected to Laboy. Claimants testified they wanted solid all wood cabinets not “ready to assemble (RTA)” cabinets because they believe that RTA cabinets contain dangerous chemicals. Gonzalez was concerned about these chemicals because her child has Amyotrophic Lateral Sclerosis (ALS). Claimants ordered the cabinets from Wood Floor and paid $9,000 dollars with a first payment of $4,000 on 12/8/22 and $5000 on 12/20/22. Claimants submitted two receipts from Wood Floor, describing items as “Fabuwood Cabinet. Fusion Blanc.” Laboy did not dispute that Claimants paid $9,000. Gonzalez contracted with another party Edwin’s New Era Construction” (Edwins) for “‘kitchen cabinet installation” and submitted an invoice for $2,875.00. “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…” Lower Court Act §1804. A contract for the sale of goods is governed by Article 2 of the Uniform Commercial Code (UCC). “goods” conform to the contract when they are in accordance with the obligations under the contract. UCC §2-106(2). Under UCC §2-606, an acceptance of goods occurs when the buyer, “(a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their non-conformity; or (b) fails to make an effective rejection (subsection (1) of Section 2-602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or (c) does any act inconsistent with the seller’s ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him. (2) Acceptance of a part of any commercial unit is acceptance of that entire unit.” See Margaret Campbell v. Bradco Supply Co., 194 AD3d 143 (App Div, 2D Dept 2021). Furthermore, “where a tender has been accepted the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.” UCC §2-607. “Where a buyer has accepted goods and given notification (subsection (3) of Section 2-607) he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.” UCC §2-714. The court must assess whether plaintiff unequivocally communicated his intent to reject goods within a reasonable amount of time after acceptance of the goods. See Maggio Importato, Inc. v. Cimitron Inc., 189 AD2d 654 (1st Dept 1993); Ferraro v. Perry’s Brick Co., 30 Misc3d 1213 (A) (Civ Ct. Richmond Cty 2011) (case involves solid wood v. veneer wood doors); Sears, Roebuck & Company v. Galloway, 195 AD2d 825 (App Div. 3d Dept 1993). Here, the Claimants testified that they noticed the materials and defects in the cabinets during the installation on December 20, 2022. On December 23, 2022, they telephoned and notified the Defendants they did not want the cabinets, as they were not what they ordered and were not “solid wood” and she wanted “solid wood” oak cabinets. Laboy, testified that Claimants did not specify they wanted oak cabinets because the cabinets ordered do not come in oak. Laboy testified that the cabinets are indeed made of wood and submitted an invoice from the cabinet manufacturer Fabuwood where they purchased the cabinets. In response, Defendants claim that they went to Claimants home to inspect the cabinets on January 18, 2023, after they were notified of the situation. Defendants submitted photographs of the cabinets being installed. The photographs were admitted in evidence over Claimants objection. The invoice submitted by claimants does not state what material the cabinets were to be made of. However, it does state that the cabinets were to be “Fabuwood Cabinet Fusion Blanc.” Defendant Laboy submitted a document entitled “Construction Specification,” which he testified is a printed copy he obtained from the Fabuwood website, wherein it states the door and drawer are solid wood and then goes on to list additional parts made of “veneered and unfinished plywood.” Claimants repeatedly told Defendants they wanted “solid wood” cabinets and Defendants argued with them and said the Fabuwood cabinets were made of solid wood. However, Claimants insisted that the cabinets were made of “fake wood.” Defendants would not accept the cabinets for return because Claimants installer had already begun to install the cabinets and allegedly caused damage to them. Defendants failed to submit admissible proof that the cabinets were conforming and the type of material the cabinets were made of. The Court must therefore evaluate whether there was an ambiguity in the agreement to ascertain whether the cabinets provided to Claimants were in accordance with the Defendants agreement under the contract. “If the intent is discernible from the plain meaning of the language of the contract, there is no need to look further. This may be so even if the contract is silent on the disputed issue.” Evans v. Famous Music Corp., 1 NY3d 452, 458 (2004). “A contract’s silence on an issue does not ‘create an ambiguity which opens the door to the admissibility of extrinsic evidence to determine the intent of the parties.’ Donohue v. Cuomo, 38 NY3d 1, 13 (2022) [quoting Greenfield v. Philles Records, Inc., 98 NY2d 562, 570 (2002)]. However, “an omission as to a material issue can create an ambiguity and allow the use of extrinsic evidence where the context within the document’s four corners suggests that the parties intended a result not expressly stated.” Hart v. Kinney Drugs, Inc., 67 AD3d 1154 (3d Dept 2009) [citing Louis Dreyfus Energy Corp. v. MG Refining and Marketing, Inc., 2 NY3d 495 (2004)].1 An ambiguity existed here as the invoice for the purchase did not specify the type of material chosen for the cabinets. Therefore, the Court may review extrinsic evidence presented. The Claimants testified they sought to purchase “solid wood” cabinets and that they specifically chose “oak” wood. However, Defendant’s submitted evidence indicates the cabinets consisted of “veneered plywood.” “plywood,” and “solid wood.” inferring that there are three different materials. Laboy submitted a pre-printed copy of Fabuwood Environmental Compliance policy, wherein it states that the products comply with the California Air Resources Board and the United States Environmental Protection Agency. However, no proof was submitted to prove the material of the cabinets. Neither was there any expert testimony on the material of the subject cabinets. Claimants further allege that because the cabinets were not “solid wood” and instead made of poor-quality material they broke easily. Claimants submitted photographs of the alleged damages. Defendant claims the damage were done by the installer. However, this is speculation and based on hearsay. Based on the photographs admitted in evidence it can reasonably be inferred that the cabinets broke off when a nail was inserted, and this should not happen if properly manufactured. Hence, Defendants are also liable for breach of warranty of merchantability of the goods sold. The warranty of merchantability requires that goods be “fit for the ordinary purposes for which such goods are used.” UCC §2-314; see Mulul v. Capital Cabinets, 191 Misc 2d 399 (Civ Ct, Kings Cty 2002) (holding that the cabinets having melting doors breached the implied warranty of merchantability); Campbell, 194 AD3d 143. Based on the foregoing, the cabinets purchased and delivered to the Claimants are non-conforming goods under the agreement. Claimants alerted the Defendants to the non-conformity within a reasonable amount of time, within three days after the cabinets were delivered on December 20, 2022, after the installer had installed one portion of the cabinets. See Ferraro v. Perry’s Brick Co., 30 Misc3d 1213(A) (Civ Ct, Richmond Cty 2011); Sears, Roebuck & Company v. Galloway, 195 AD2d 825 (App Div, 3d Dept 1993). Based on the credible and admissible evidence at trial, claimants properly and timely revoked their acceptance of the goods pursuant to UCC §2-608. as non-conforming to the contract. Here the parties entered into a contract for the purchase of cabinets. However, defendants breached the contract in providing non-conforming goods. Here, the record supports a finding of a multitude of defects including that the cabinets were made of a material other than what the claimant’s contracted for. Further, the claimant’s proved that these non-conformities substantially impaired the value of the cabinets UCC-2-608(1). The cabinets were easily broken and damaged. Claimants notified the defendants of its revocation of acceptance within a reasonable time after discovery of the grounds for such revocation on 12/23/22 and on several times thereafter between 1/18/23 and attempted to reach a resolution. However, defendants refused to take the cabinets back. Claimants have kept the cabinets unused and packaged in their garage, photo submitted. Claimants repeated complaints and requests for defendants to remedy the non-conformities in the cabinets sufficiently preserved claimants’ rights to sue for damages. see Campbell v. Bradco, citing Sears Roebuck, supra. Pursuant to UCC §2-714(1), a buyer who has accepted goods and given proper notification may recover as damages for any non-conforming tender “the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.” Official Comment 2 to this subsection provides that the “non-conformity” referred to includes “not only breach of warranties but also any failure of the seller to perform according to his obligations under the contract.” In the case of such non-conformity, the buyers permitted to recover for his loss “in any manner which is reasonable.” Ferraro, supra. Accordingly, it is hereby ORDERED, that Judgment be entered in favor of the Claimants in the amount of $9.000 with interest from December 8, 2022, and costs and disbursements against Defendant Wood Floor Planet Inc. and Eddy Laboy, jointly and severally and it is further ORDERED, that the matter is dismissed as against the individual Defendant, Brandon Rivera; and it is further ORDERED, a copy of this Decision will be mailed to the parties. This constitutes the Decision and Order of this Court. Dated: April 23, 2024
