Justice Court of the Town of Penfield, Monroe County, January 27, 2023

Paulette Petti, plaintiff pro se.

Jessica Deridder, defendant pro se.

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{**78 Misc 3d at 692} 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.

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 Just Ct 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. 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

[1] 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 [2] [c]; Fischer v Zervas, 73 Misc 3d 1207[A], 2021 NY Slip Op 50964[U] [Sup Ct, Warren County 2021]; Ball v Home Depot, 69 Misc 3d 1213[A], 2020 NY Slip Op 51310[U] [Sup Ct, Suffolk County 2020]). The status of the seller is critical in determining the{**78 Misc 3d at 693} applicability of the implied warranty of merchantability. Merchants are deemed to give an implied warranty of merchantability; non-merchants are not.^[FN1]

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.^[FN2]

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.^[FN3] 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 & Bath v Beeche Sys. Corp.,{**78 Misc 3d at 694} 230 AD2d 326 [3d Dept 1997]; Fischer v Zervas, 73 Misc 3d 1207[A], 2021 NY Slip Op 50964[U] [Sup Ct, Warren County 2021]).

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[A], 2004 NY Slip Op 51918[U] [Sup Ct, Clinton County 2004]; Kates Millinery v Benay-Albee Corp., 114 Misc 2d 230 [Civ Ct, Queens County 1982]; cf. Simmons v Washing Equip. Tech., 51 AD3d 1390 [4th Dept 2008]).

UCC 2-313—Express Warranty

[2] Under UCC 2-313, a seller who makes representations about the condition of the goods sold can be liable for breach of express warranty.^[FN4] Any seller—merchant or non-merchant—may make an express warranty.

New York courts have found that express warranties may be formed where the representations were made in advertisements (Murrin v Ford Motor Co., 303 AD2d 475 [2d Dept 2003]). For example, in Eddington v Dick (87 Misc 2d 793 [Geneva City Ct 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{**78 Misc 3d at 695} described the refrigerator as being in "[g]ood condition," created an express warranty (id. at 794).

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[A], 2008 NY Slip Op 50010[U] [Ossining Just Ct 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" (2008 NY Slip Op 50010[U], *2). 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 1112[A], 2008 NY Slip Op 50010[U], *4 [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.^[FN5]

{**78 Misc 3d at 696}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.

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 [*2]upon by plaintiff.^[FN6] 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.

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 and Exchanges of Personal Property § 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 suggests that the damage existed at the time of sale. Consequently, there was no affirmative{**78 Misc 3d at 697} 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.

"(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, 2008 US Dist LEXIS 58648 [SD NY, Aug. 4, 2008, No. 06 CV 4972(GBD)].)

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 all in good working order." That statement tends to prove plaintiff's reliance on defendant's affirmation regarding the quality of the appliance.