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.
      • Conforming delivery is also called a cure.