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  1. #381
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    'K, this thread doesn't get to devolve into a "diss Clothes Horse" and "plug Equitex" because of the Clothes Horse tangent.

    Geez, you guys.
    The armchair saddler
    Politically Pro-Cat


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  2. #382

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    Quote Originally Posted by mvp View Post
    'K, this thread doesn't get to devolve into a "diss Clothes Horse" and "plug Equitex" because of the Clothes Horse tangent.

    Geez, you guys.
    Woa totally not what I meant! Just explaining why custom blankets can be priced that way. I was in no way dissing TCH!


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  3. #383
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    I dunno. Even a customized (but not custom fit) Baker sheet costs about $190 with lining, shoulder monogram, fleece at wither, custom color binding, and piping. And there are further possible upgrades that would make it cost more. So I didn't find the sheet/blanket prices THAT astonishing.


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  4. #384
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    Agreed that there is a benefit in buying a quality product, and the Clothes Horse has our logo and preferences on file. But it would be interesting (not that it's any of my business) to figure out what the upcharges, if any, were on the blankets, tack, and other products bought for the ponies.

    With respect to the complaint, answers, and motion to dismiss, here's a summary of what the various people-who-have-posted-who-admit-to-being-lawyers (and I'm one of them) have said:

    (1) The complaint is not well written and is confusing, which may or may not be a product of some or all of the following: (i) quirks of New York civil practice, (ii) time pressures to get something on file, (iii) inadequate facts or misunderstood information from the client, and/or (iv) sloppy lawyering.

    (2) The plaintiff (Mrs Tichner Dilbendian) sues (i) Heritage Farms, (ii) her daughter's trainer at Heritage, Patricia Griffith, and (iii) the vet who did the PPE, Dr. Christopher Miller.

    (3) Plaintiff alleges Heritage and Griffith knew she was wanted a pony for the specific purpose of being a show hunter for plaintiff's daughter and as an investment for later resale, and they misrepresented that the pony (Sports Talk a/k/a Joey) was suitable for those purposes.

    (4) Plaintiff alleges that she wanted a PPE done before she bought the pony, and that Heritage/Griffith chose Dr. Miller to do the PPE. Dr. Miller, allegedly knowing the purpose for which the pony was being purchased, did the PPE and did x-rays on the pony.

    (5) Plaintiff alleges that the x-rays showed rotation in the pony's feet (no details of which feet or how much rotation), making the pony unsuitable for the intended purpose. Plaintiff alleges each of the defendants -- Heritage, Griffith, and Dr. Miller -- knew but did not disclose that information to the plaintiff/buyer. The complaint alleges that, instead, after the PPE, Heritage, Griffith, and Dr. Miller told plaintiff that the pony was "sound, healthy and possessed no physical defects," was fit for the intended purpose, and was a good investment. She alleges she bought the pony in reliance upon these representations.

    (6) Plaintiff alleges that sometime after the purchase she learned that the pony had rotation indicating laminitis, and was therefore not sound or suitable for the intended purpose. She alleges that she later found out that the x-rays from the PPE "revealed physical defects and rotation in his feet."

    (7) She further alleges that sometime after the purchase, and apparently after she left Heritage (though that is unclear), she learned that while the pony was at Heritage it frequently suffered from sore feet and had its feet blocked to show at Pony Finals.

    (8) The complaint alleges the pony's undisclosed physical defect(s) renders him useless for the intended purpose and destroys his investment value. The plaintiff seeks damages from all defendants of: (i) the purchase price of the pony, (ii) show costs, (iii) training, board, and other maintenance costs, and (iv) future costs, in the amount of at least $325,000.00.

    (9) Plaintiff alleges causes of action for:

    (i) Fraud and Misrepresentation (all defendants): they allegedly knew about the pony's problems and intentionally lied to her to get her to buy the pony and spend a bunch of money on training and showing;

    (ii) Negligent Misrepresentation (all defendants): they allegedly negligently failed to use reasonable care and competence to obtain and communicate to her information about the pony's problems and the consequences of those problems;

    (iii) Professional Negligence (Dr. Miller): he allegedly failed to use due diligence to obtain the pony's prior medical records; failed to discover, diagnose, and report the pony's prior and existing physical problems; failed to disclose the information about the pony's unsoundness and defects despite having actual knowledge of them; and failed to perform a proper pre-purchase exam.

    (iv) Breach of Contract (Heritage and Griffith): they allegedly "breached the contract of sale" by failing to disclose that the horse was unsound and not suitable for the intended purpose.

    (v) Violation of New York General Business Law sec. 349 (Heritage and Griffith): this is the NY version of a commonly found statute in most states, against deceptive and unfair trade practices, which has a "laundry list" of prohibited practices, recited in the complaint. The complaint uses the right caption, but mistakenly references the Pennsylvania version of the law in the text.

    (vi) Breach of Express Warranty (Heritage and Griffith): they allegedly expressly warranted (promised and represented) that the pony was sound and suitable for the express purposes of being a good show hunter pony for the daughter and a good investment pony, and they allegedly breached those warranties because the pony was not suitable for those purposes;

    (vii) Breach of Implied Warranty of Merchantability (Heritage and Griffith): under the circumstances, Heritage was a merchant selling particular goods (the pony -- horses are classified as "goods" under the law), the law implied a warranty that the pony was merchantable, and they breached that warranty because the pony was not able to pass reasonable goods for the ordinary purposes of such goods in the particular trade. Again, the complaint is sloppy and wrongly references the Pennsylvania version of the Uniform Commercial Code instead of the equivalent NY UCC statute.

    (vii) Breach of the Implied Warranty of Fitness for a Particular Purpose (Heritage and Griffith): the circumstances gave rise to an implied warranty that the pony was suitable for the particular purposes for which it was being bought, of which Heritage and Griffith were aware, and they allegedly breached that warranty because the pony was not fit for those purposes.

    (9) The breach of contract claim is just weird because the contract of sale wan't with Heritage or Griffith, it was between the buyer and the seller. Heritage and Griffith were (apparently) the buyer's agents, not the seller. Also, the sales contract expressly says the sale is on an "as is" basis, without any warranties.

    (10) For some unknown reason, the complaint does not expressly allege that Heritage, Griffith, and/or Dr. Miller were acting as agents of the plaintiff, that they owed a fiduciary duty to plaintiff as her agents, and that they breached that duty by failing to disclose the pony's problems revealed by the PPE. The "as is" provision in the sales contract would not be much of a defense if they had a duty to tell their client, the buyer, all the facts and they failed to do so.

    More in the next post.
    "I don't want to sound like a broken record here, but why is it that a woman will forgive homicidal behavior in a horse, yet be highly critical of a man for leaving the toilet seat up?" Dave Barry


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  5. #385
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    That sums it up pretty well. I'll add 1(v) potential lost in translation details between a horsey client and a non-horsey attorney.
    ~Veronica
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  6. #386
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    Summary continued:

    (11) Heritage's motion to dismiss takes a very narrow and literal view of the complaint, taking advantage of the drafting mistakes, lack of clarity, and sloppiness in misciting the relevant statutes. It asserts that all of the causes of action against Heritage and Griffith are based on them being the sellers of the pony (rather than being the buyer's agent), and since they were clearly not the seller, none of the claims can be sustained as a matter of law. And, the motion asserts, even if the claims did apply, they could not be sustained because NY law allows "puffery" (i.e., exaggeration and putting things in the best possible light) with respect to the sale of goods.

    (12) In most states, the plaintiff can amend the complaint to fix mistakes and change, add, or delete claims. If that is the case in NY practice, then the plaintiff should be able to amend the complaint to make it more clear and assert the proper claims with respect to a buyer's agent.

    (13) Dr. Miller's answer denies the allegations in the claims against him, or says he is without sufficient information to admit or deny certain of them. (Standard practice in an answer). He asserts as affirmative defenses that:

    (i) the claims against him are without merit, and his actions were in accordance with good and accepted practice (technically not an affirmative defense, but always good to get that out there);

    (ii) the complaint fails to state a cause of action for which relief can be granted; i.e., none of the claims can be sustained under the law;

    (iii) plaintiff accepted the terms of the sale, ratified the purchase, and waived any right to complain;

    (iv) claims are barred by laches; i.e., she waited an unconscionably long time to bring the complaint. This is just silly, given that the PPE was only about a year before she filed suit and they only allegedly found out about the problems last November or so, but lawyers still routinely use it as a defense;

    (v) assumption of risk, contributory negligence, comparative negligence, etc; a laundry list of miscellaneous defenses based on the plaintiff's own alleged conduct in the transaction and handling of the pony after the purchase, all of which reduces the defendant's alleged liability;

    (vi) the court lacks jurisdiction over the defendant; it doesn't make clear whether they deny personal jurisdiction (i.e., that Dr. Miller does not have sufficient contacts with NY state for a NY court to exercise jurisdiction over him) or subject matter jurisdiction (over the events in question);

    (vii) the claims are barred by the statue of limitations; that is, the time allowed for filing the claims has passed. This could only apply if the NY statute for all of these claims is less than one year (which is unlikely but I haven't looked it up) and there's no "discovery rule" in NY (that is, that the statute does not start running until the plaintiff knew or should have known of the injury/basis for the claim);

    (viii) failure to join necessary parties; presumably meaning the seller of the pony, but not likely to be a successful defense;

    (ix) while denying all liability, various technical defenses to reduce this particular defendant's responsibility for any damages, such as that they should be apportioned between the defendants, other parties are to blame, etc. (standard stuff).

    So that's it. The motion to dismiss plays cute with the defects in the complaint, most of which should be able to be remedied by amending the complaint, and the vet's answer is standard stuff, without a lot of information about the facts or what positions he is really going to argue. In the meantime, he wants a lot of discovery (information) about the pony, the sale, post-sale events, etc., which is the smart thing to do.
    "I don't want to sound like a broken record here, but why is it that a woman will forgive homicidal behavior in a horse, yet be highly critical of a man for leaving the toilet seat up?" Dave Barry


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  7. #387
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    Quote Originally Posted by vxf111 View Post
    That sums it up pretty well. I'll add 1(v) potential lost in translation details between a horsey client and a non-horsey attorney.
    Good point.
    "I don't want to sound like a broken record here, but why is it that a woman will forgive homicidal behavior in a horse, yet be highly critical of a man for leaving the toilet seat up?" Dave Barry



  8. #388
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    Excellent summary, Portia (I'm a lawyer too but wouldn't have had the energy to do that). I would add that I find Dr. Miller's answer interesting in what it denies outright and what it says he is without sufficient information to admit or deny. For example, it explicitly denies that he told the plaintiff that the pony was sound for jumping or suitable for investment, and also denies that the pony is "useless" for those purposes, but says he doesn't have enough information to admit or deny whether the x-rays showed rotation. I think it gives a hint of what direction the case might take.

    ***Correction: See my post below. What the answer says is that he "denies in the form alleged" the stuff about the rotation." I still think that gives a hint of what direction the lawsuit may take. ***
    Last edited by TemJeito; Jun. 11, 2013 at 05:51 AM.


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  9. #389
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    Quote Originally Posted by Discobold View Post
    Excellent summary, Portia (I'm a lawyer too but wouldn't have had the energy to do that).
    I'm procrastinating looking at documents.
    "I don't want to sound like a broken record here, but why is it that a woman will forgive homicidal behavior in a horse, yet be highly critical of a man for leaving the toilet seat up?" Dave Barry


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  10. #390
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    Sorry for not quoting you on this Portia, thank you for taking the time to post.



  11. #391
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    Just a possible answer to the "horse show meds..." My theory doesn't entirely explain it but could be part of it.

    Having just groomed for a farm that heavily uses "Easy Does It" I know it is not cheap, nor is it lightly used.

    It is recommended morning and night PLUS two hours prior to competition.

    So say you're at a show for a week, smartpak sells it for $21.99 a tube. At three tubes a day, that's $66 a day per horse for it. Then say, tack on a $5 per tube dosing charge, you have $81 a horse per day. Now you're at the show for a week, you're at $560 for three tubes a day...and that's just one horse. Now multiply it by 4 or 5 or 6 horses and you have a pretty hefty charge. I'm not saying that's all that was used but its a logical scenario. Maybe add in some pain meds that they don't want to disclose and you have your "horse show meds" bill.



  12. #392
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    I've been following this thread off and on for a bit. Portia's outline is excellent. Obviously none of us know what happened, but the part about Dr. Miller's answer "not having sufficient information" to tell whether there was rotation sounds like an outright lie to me. Dr. Miller sees x-rays > rotation YES or NO. Any decent vet can look at x-rays and determine whether or not there's rotation!
    I realize that I'm generalizing here, but as is often the case when I generalize, I don't care. ~ Dave Barry


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  13. #393
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    Quote Originally Posted by TheHunterKid90 View Post
    Just a possible answer to the "horse show meds..." My theory doesn't entirely explain it but could be part of it.

    Having just groomed for a farm that heavily uses "Easy Does It" I know it is not cheap, nor is it lightly used.

    It is recommended morning and night PLUS two hours prior to competition.

    So say you're at a show for a week, smartpak sells it for $21.99 a tube. At three tubes a day, that's $66 a day per horse for it. Then say, tack on a $5 per tube dosing charge, you have $81 a horse per day. Now you're at the show for a week, you're at $560 for three tubes a day...and that's just one horse. Now multiply it by 4 or 5 or 6 horses and you have a pretty hefty charge. I'm not saying that's all that was used but its a logical scenario. Maybe add in some pain meds that they don't want to disclose and you have your "horse show meds" bill.
    And that's cheating by the letter if the law.....
    Come to the dark side, we have cookies


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  14. #394
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    Quote Originally Posted by TheHunterKid90 View Post
    Just a possible answer to the "horse show meds..." My theory doesn't entirely explain it but could be part of it.

    Having just groomed for a farm that heavily uses "Easy Does It" I know it is not cheap, nor is it lightly used.

    It is recommended morning and night PLUS two hours prior to competition.

    So say you're at a show for a week, smartpak sells it for $21.99 a tube. At three tubes a day, that's $66 a day per horse for it. Then say, tack on a $5 per tube dosing charge, you have $81 a horse per day. Now you're at the show for a week, you're at $560 for three tubes a day...and that's just one horse. Now multiply it by 4 or 5 or 6 horses and you have a pretty hefty charge. I'm not saying that's all that was used but its a logical scenario. Maybe add in some pain meds that they don't want to disclose and you have your "horse show meds" bill.
    Even if it isn't that specific medication, the dosing charge is what I would think would add up quickly. Say even $10 to give the horse bute or something if the pony showed three days thats already $30. Stuff adds up quickly, I had friends who rode with VBNTs as juniors and I remember being astounded by the a la carte style of the billing. One of my friends had a horse who was charged $25 every time the staff put on bell boots or took them off to turn the horse out.

    I'm not saying that I think some of those $1,000 med charges are normal but when I saw a bunch towards the beginning for $130 I thought it was kind of normal. Especially because Heritage is at the very top level for location and reputation so I can only imagine there would be a mark up.
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  15. #395
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    Quote Originally Posted by Guin View Post
    I've been following this thread off and on for a bit. Portia's outline is excellent. Obviously none of us know what happened, but the part about Dr. Miller's answer "not having sufficient information" to tell whether there was rotation sounds like an outright lie to me. Dr. Miller sees x-rays > rotation YES or NO. Any decent vet can look at x-rays and determine whether or not there's rotation!
    Yabbut, was his assigned task to "go look for any degree or rotation in one coffin bone? Both?" What degree of rotation is deemed to make a pony unfit for jumping? For resale?

    If this PPE went like most others do, the vet's job is to evaluate the horse for the intended purpose. So some messy stuff on X-rays or various imperfections are *still* open to the DVM's interpretation as far as how it will affect the horse's utility goes. And that interpretation is open to the buyer and her trainer as well.
    The armchair saddler
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  16. #396
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    As an ex-litigation attorney, my guess is that a first year associate is (or should be) in hot water for this complaint. And the 5th year associate who should be reviewing his/her work must have been otherwise engaged.

    Citing the law of another state is beyond incompetent and has nothing to do with equine matters. It has to do with giving a fig about the product you are turning out and filing with the court.

    Hopefully the law firm will assign an experienced attorney to write the amended complaint. It should be embarrassed about the quality of this one.

    Yes, legal documents can be hard to understand. But they should not be filled with errors of law and fact.

    PS: Thanks for the good summary, Portia. Nice to see you again; it's been a long time.
    "I used to have money, now I have horses."


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  17. #397
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    Quote Originally Posted by Pennywell Bay View Post
    And that's cheating by the letter if the law.....
    I completely agree and don't condone it in any sense. That was the first time I groomed for this particular farm and will certainly be the last. I was just using it as an example that it's possible.


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  18. #398
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    Quote Originally Posted by TheHunterKid90 View Post
    I completely agree and don't condone it in any sense. That was the first time I groomed for this particular farm and will certainly be the last. I was just using it as an example that it's possible.
    Didn't mean to be accusatory towards you...
    Come to the dark side, we have cookies


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  19. #399
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    Quote Originally Posted by Guin View Post
    I've been following this thread off and on for a bit. Portia's outline is excellent. Obviously none of us know what happened, but the part about Dr. Miller's answer "not having sufficient information" to tell whether there was rotation sounds like an outright lie to me. Dr. Miller sees x-rays > rotation YES or NO. Any decent vet can look at x-rays and determine whether or not there's rotation!
    Yabbut: If the customer didn't allow enough angles to show any angle of rotation, or if the radiographs were supplied to him by another party for him to read, his 'excuse' could still be valid, if the technique on the radiographs was wrong and they were just plain old poor images.



  20. #400
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    *** Please Read*** I'm the one who made the comment about Dr. Miller's answer concerning the rotation in the feet, and I made a mistake ! I had read the answer two days earlier and mixed up paragraphs 1 & 3. You have to match the paragraphs of the answer to the paragraphs of the complaint, and it's cumbersome. Anyway, when I just checked, I realized the stuff about the rotation of the feet is in paragraph 3 of the answer in which he "denies the allegations in the form alleged." This is standard legal boilerplate, as is the language in paragraph 1 about not having sufficient information. So, to be clear, he "denies in the form alleged" that (1) the radiographs revealed that the pony had rotation in his feet (paragraph 26 of the complaint), and (2) that he didn't tell the plaintiff that the pony had rotation in the feet (paragraph 44 of the complaint).

    Sorry about any confusion. To me, what's still significant is that this is not something he denies outright. But there is nothing sinister about the answer. It's possible that there are no bad guys in this lawsuit.
    Last edited by TemJeito; Jun. 11, 2013 at 11:45 AM. Reason: delete wrong stuff



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