DECISION AND ORDER The Claimant commenced this action in the Small Claims Court to recover a deposit paid to defendant, a furniture company, for a sofa. The amount of the deposit in question is $465.00. The main issue in dispute is whether claimant is liable for the various fees set forth in the Terms and Conditions of Sale between claimant and defendant. A bench trial was held on February 26, 2020. During the trial, the Court reserved decision. The Court hereby finds and decides the following. Findings of Fact Claimant, appearing pro se, testified that she agreed to purchase a reclining sofa from defendant on September 2, 2019. Claimant testified that on September 2, she paid defendant a $465.00 deposit, which is reflected in her receipt. The receipt was entered into evidence as Claimant’s Exhibit 1. Claimant testified that the day before the promised delivery date, she called defendant to inquire about the status of the delivery. Claimant testified that defendant informed her that they could not deliver the sofa within the promised time frame, because two other customers’ furniture items had to be delivered before hers. Claimant then testified that defendant offered her the option to return to the store to pick out a replacement sofa. Claimant admitted in her testimony that she had changed her mind about the original sofa, but she also testified that she never refused its delivery. Claimant testified that she initially selected a replacement sofa, but ultimately decided to seek a refund on her original order. According to claimant’s testimony, defendant agreed to cancel the original order and refund claimant, but only after the payment of the fees listed in the Terms and Conditions of Sale, which are found on the back of the receipt. The Terms and Conditions of Sale state: “All cancelled orders are subject to a 20 percent cancellation fee, 15 percent re-stocking fee and 10 percent administrative fee.” Claimant testified that she should not be responsible for the fees because (1) defendant’s delivery was delayed and (2) the fees comprise a disproportionately large amount of her deposit. Claimant testified that according to her own internet research, several other customers have had similarly negative experiences with defendant. Defendant, through the testimony of its Operations Manager, testified that delivery of claimant’s original sofa order was delayed. Defendant testified that he did not know why the delivery was delayed. Defendant testified that claimant then changed her mind about her original sofa, so defendant offered her a replacement. Defendant testified that claimant visited the store, selected a custom order replacement sofa, and paid for it by check. However, defendant testified that it did not cash the check. Defendant then testified that claimant changed her mind about the replacement sofa as well. According to defendant’s testimony, claimant’s order was converted back to her original sofa order. Defendant testified that at that time, defendant offered claimant a refund on the original $465.00 deposit, minus the cancellation, re-stocking, and administrative fees. According to defendant’s testimony, the re-stocking fee covers costs to send furniture back to the manufacturer, and the cancellation and administrative fees cover in-house administrative expenses associated with the order and return. The Court finds the claimant’s testimony credible. The Court discredits defendant’s explanation for why defendant should retain 45 percent of claimant’s deposit, especially in light of defendant’s inability to explain its failure to timely deliver the original sofa. “Determination of the credibility of witnesses, as well as the weight to be accorded to the evidence, are primarily questions to be determined by the trier of fact and should not be disturbed when supported by a fair interpretation of the evidence”. See, Charles J. Hecht, P.C. v. Clowes, 224 AD2d 312 (1st Dept 1996). Discussion The sale and delivery of furniture is governed by the General Business Law §396-u (the Merchandise Delivery Act). §396-u(2)(a) provides that a furniture company, such as defendant, must “disclose an estimated delivery date, or an estimated range of delivery dates, conspicuously and in writing on the customer’s copy of the contract entered into for the sale…of furniture…at the time an order for such merchandise is taken.” After the latest date stated for delivery in the original contract, the customer may cancel the contract and receive a credit for any deposits made. General Business Law §396-u(2)(b)(2)(b). Although the receipt states that delivery will occur within ten days (but up to a maximum of 180 days), the “Delivery Date” box on the receipt is conspicuously empty. The Terms and Conditions of Sale note in paragraph 3(c) that the 10-day period either commences on the “date of sale or the date the merchandise arrives at our warehouse.” Whether claimant changed her mind about the original sofa is irrelevant, because claimant did not cause the delay. Rather, defendant caused the delay by prioritizing other customers’ orders. Upon the delay, defendant was required by the General Business Law to inform claimant of a new delivery date. Then, defendant was required to inform claimant of her options upon the expiration of the last delivery date stated in the original contract: (1) cancel the contract and receive either a full refund; (2) cancel the contract and receive a credit equal to her deposit; (3) negotiate a new delivery date or range of delivery dates; or (4) modify the contract by allowing claimant to make a new furniture selection. General Business Law §§396-u(2)(b)(2). Claimant originally tried to modify the contract and make a new sofa selection, but ultimately elected her statutory right to cancel the contract and receive a full refund. Per the testimony of both parties, defendant agreed to cancel the contract and issue a refund. Upon claimant’s cancellation, defendant was required to honor claimant’s election to cancel the contract and refund the deposit in full, without imposing any fees. General Business Law §396-u(2)(b)(2)(a); Walker v. Winks Furniture, 168 Misc 2d 265, 269 (Yonkers City Ct 1996). Defendant’s suggestion that the sofa was custom-made, and therefore not subject to General Business Law §396-u, is without merit. General Business Law §396-u(1)(c) excludes “any article which is in substantial part custom-made or custom finished” from the merchandise covered by the law. Furniture is custom made when it is built according to measurements and specifications unique to the customer’s order. Dweyer v. Montalbano’s Pool & Patio Center, Inc., NYLJ, Mar. 16, 2004 at 18 (Civ Ct, Richmond County 2004) (affd other grounds 10 Misc 3d 135(a) (App Term, 2d & 11th Jud Dists 2005)). Although the claimant’s receipt states that the sofa is a custom order, there is nothing to indicate how the sofa is in substantial part custom-made or custom finished. The receipt merely provides a model number and name for a standard sofa model. Even if the sofa had been made to order with one of several options for the upholstery, the sofa would not be “in substantial part” custom-made, since its main component parts reflect a standard model. Because the sofa is not custom-made, claimant is entitled to a full refund of her deposit under the General Business Law. Lastly, the contract may also be rescinded under the doctrine of unconscionability. See Walker v. Winks Furniture, 168 Misc 2d 265, 269 (Yonkers City Ct 1996) (holding that “the failure of [defendant furniture company] to deliver the ordered furniture within one week and the failure to refund 100 percent of [plaintiff's] contract payment amounts to unconscionability”). Upon rescission, claimant was entitled to the full deposit. Conclusion Accordingly, it is hereby ORDERED, that the judgment be entered in favor of the plaintiff and against the defendant in the amount of $465.00. This constitutes the Decision and Order of this Court. Dated: June 30, 2020
