Dempsey v. Rosenthal

OPINION OF THE COURT

David B. Saxe, J.

The novel issue that I am asked to resolve in the context of this small claims proceeding is as follows: Is a consumer who purchases a dog with one undescended testicle entitled to damages amounting to a refund of the amount paid on the ground that the dog is defective and therefore nonmerchantable?

The essential facts are these: While passing by the American Kennels pet stores on May 20, 1983, at 786 Lexington Avenue in Manhattan, Ms. Ruby Dempsey, a Huntington, Long Island, school teacher, decided to investigate the purchase of a poodle.

Apparently…