Appeal from a judgment of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered December 15, 2009. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,500.

ORDERED that the judgment is reversed, without costs, and the action is dismissed.

In this small claims action, plaintiff alleges that defendant, a dog breeder, breached the implied warranty of merchantability when she sold plaintiff a genetically
defective dog. Plaintiff seeks to recover the purchase price of the dog and the expenses she incurred for its treatment. Defendant asserts that plaintiff can not recover damages because she never notified defendant that the dog suffered from any condition or that it had died. After a nonjury trial, the Civil Court awarded plaintiff the principal sum of $2,500.

Upon a review of the record, we find that substantial justice was not done between the parties according to the rules and principles of substantive law (CCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]).

"Dogs have been held to constitute goods' within the meaning of section 2-105 of the Uniform Commercial Code, and defendant, a private breeder, is a merchant' within the meaning of UCC 2-104 (1)" (Appell v Rodriguez, 14 Misc 3d 131[A], 2007 NY Slip Op 50051[U], *2 [App Term, 9th & 10th Jud Dists 2007] [internal citations omitted]). A dog purchaser may recover damages pursuant to UCC 2-714 on the theory that a merchant seller breached the implied warranty of merchantability (see UCC 2-314; Saxton v Pets Warehouse, 180 Misc 2d 377, 378 [App Term, 9th & 10th Jud Dists 1999]; Sacco v Tate, 175 Misc 2d 901, 902 [App Term, 9th & 10th Jud Dists 1998]). "This remedy," however, is available only "where the buyer notifies the seller of its breach within a reasonable time after it discovers or should have discovered the nonconformity of the goods" (M. Slavin & Sons Ltd. v Glatt Gourmet Cuisine, Inc., 23 Misc 3d 18, 21 [App Term, 9th & 10th Jud Dists 2009]; see Sears, Roebuck & Co. v Galloway, 195 AD2d 825, 827 [1993]; see also UCC 2-714 [1]; 2-607 [3] [a]).

In this case, plaintiff specifically averred that she had never notified defendant that the dog suffered from any condition or that the dog had died. As a result, plaintiff's cause of action for breach of the implied warranty of merchantability must fail (see M. Slavin & Sons Ltd. v [*2]Glatt Gourmet Cuisine, Inc., 23 Misc 3d at 21). Defendant's remaining contentions are without merit.

Accordingly, the judgment is reversed and the action is dismissed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: September 16, 2011