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Dinicola v. Watchung Furniture''s Country Manor

Decided: April 5, 1989.

KENNETH P. DINICOLA, PLAINTIFF-APPELLANT, CROSS-RESPONDENT,
v.
WATCHUNG FURNITURE'S COUNTRY MANOR, DEFENDANT-RESPONDENT, CROSS-APPELLANT. AND TEMPLE STUART, DEFENDANT



On appeal from Superior Court of New Jersey, Law Division, Middlesex County.

J. H. Coleman and Baime. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.

Coleman

[232 NJSuper Page 70] This appeal arises from claims for breach of warranties and Consumer Fraud Act violations related to the purchase of household furniture. At the conclusion of a jury trial, plaintiff was awarded $600 in compensatory damages for breach of warranties. The damages were tripled because of an alleged violation of a regulation promulgated pursuant to N.J.S.A. 56:8-4. Counsel fees of $1,875 were allowed plaintiff's attorney pursuant to N.J.S.A. 56:8-19. Plaintiff has appealed contending the award of counsel fees was inadequate. Defendant has cross-appealed contending the Consumer Fraud Act does not apply to this case. We agree with defendant cross-appellant and reverse.

The facts essential to our decision are not in dispute. On September 17, 1984, plaintiff contracted to purchase a credenza, china deck, two captain's chairs and four mate's chairs from defendant Watchung Furniture's Country Manor (Watchung) for the sum of $2,571.56. Plaintiff made a down payment of $600. As promised, Watchung tendered delivery of the furniture on October 10, 1984. Plaintiff rejected delivery because the furniture was defective. Watchung refused to refund plaintiff's deposit.

Left with no other alternative, plaintiff filed a complaint against Watchung on October 18, 1985. Under the first count, plaintiff sought a return of the $600 deposit because the items of furniture "were in non-conformity with express warranties made by Watchung. . . ." In the second count, plaintiff alleged Watchung's "tender of merchandise in non-conformity with the express warranties made by Watchung constitutes a failure to deliver promised merchandise within the meaning of N.J.A.C. 13:45A-5.1(a)." Plaintiff sought treble damages and counsel fees under the second count.

The case was submitted to a jury on special interrogatories. The jury was asked:

1. Do you find from the facts that the plaintiff, Kenneth P. Dinocola[,] had reasonable basis to reject delivery of the furniture on October 10, 1984?

YES X NO

If "YES" go on to Question No. 2.

If "NO" STOP and return your verdict.

2. Do you find from the facts that the furniture delivered was so defective it did not not substantially conform to the contract made between the parties?

YES X NO

Based on the jury's answers, the judge concluded that N.J.A.C. ...


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