Bartus v. Riccardi
55 Misc.2d 3, 867N.Y.S.2d 222 (N.Y. City Ct. 1967)
Riccardi
came to Bartus to buy a hearing aid.He ordered a Model A-660 but received a Model A-665
instead.
Riccardi's
doctor specifically prescribed the Model A-660 for him.
Model
A-665 was supposed to be a new and improved model.
After
trying it out, Riccardi rejected and returned it.Bartus called the manufacturer,
who offered to get the Riccardi the right model.Riccardi decided that he didn't want either model from
Bartus.Bartus sued on the
balance due on the contract.
Riccardi
argued that he had the right to reject the Model A-665 because it was an improper
delivery of goods (UCC § §
2-601 2-602(2)(c) aka the Perfect Tender Rule)
Riccardi
had made a down payment, but neglected to make a counterclaim in a timely
manner, so the Court refused to consider the possibility of getting his
down payment back.
Trial
Court found for Bartus.
Trial
Court found that Bartus had reasonable grounds to believe that the Model
A-665 would be acceptable to Riccardi. Therefore UCC § 2-508 allows the Bartus reasonable extra time to
come up with a Model A-660 in conformance with the contract.
Under
UCC § 2-508, the seller of
goods can take a reasonable amount of time to make a conforming
delivery in substitute for the non-conforming goods.
