Episcopal Church Home of Western New York, Inc. v. Bulb Man, Inc.

—Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff commenced this action alleging, inter alia, that defendant breached the implied warranty of merchantability by selling plaintiff defective ballasts for light fixtures. The implied warranty of merchantability provides that goods will be fit for the ordinary purposes for which they are used (see, UCC 2-314 [2] [c]; Gordon v Ford Motor Co., 260 AD2d 164, 165; Butler v Interlake Corp., 244 AD2d 913, 915). Supreme Court properly determined, following a bench trial, *962that defendant breached that warranty. Plaintiff established that, according to defendant, the accepted failure rate for the fixtures was 10%. Plaintiff presented proof that at least 15% of the fixtures purchased were defective, thereby establishing that the goods were not fit for the ordinary purposes for which they are used (see, UCC 2-314 [2] [c]).

We agree with defendant, however, that the court erred in awarding plaintiff damages in the amount of $17,758. In determining the amount of damages, the court failed to comply with UCC 2-714 (2), which sets forth the formula for calculating damages in a breach of warranty action “unless special circumstances show proximate damages of a different amount.” Plaintiff failed to prove special circumstances. Defendant concedes that, based upon that formula, plaintiff is entitled to recover damages in the amount of $9,910, and thus we modify the judgment accordingly. (Appeal from Judgment of Supreme Court, Erie County, Stathacos, J.H.O. — Contract.) Present— Pigott, Jr., P. J., Pine, Hurlbutt, Scudder and Kehoe, JJ.