Anderson v Emely Corp.
Decided on October 20, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
HON. WILLIAM P. McCOOE, J.P.,
HON. PHYLLIS GANGEL-JACOB
HON. MARTIN SCHOENFELD, , Justices.
Latanya Anderson, NY County Clerk's No. 570662/04 Plaintiff-Respondent, Calendar No. 05-195
Emely Corp., Defendant-Appellant.
Defendant appeals from a judgment of the Small Claims Part of the Civil Court, Bronx County, entered June 15, 2004 after trial (Wilma Guzman, J.) in favor of plaintiff and awarding her damages in the principal sum of $4,270.
Judgment entered June 15, 2004 (Wilma Guzman, J.) reversed, without costs, and a new trial ordered.
Plaintiff commenced this small claims action seeking $5,000 in property damage resulting from a two-car collision. Following an abbreviated trial, where a prospective defense eyewitness was precluded from testifying on the ground that his testimony would have been "duplicative" of that offered by defendant and where defendant's driver was prevented from testifying fully regarding the circumstances of the accident, the trial court rendered a judgment for plaintiff.
The insufficiently developed record does not permit intelligent appellate review of the substantive liability issues presented. Unresolved issues remain as to whether plaintiff's driver failed to yield and see that which he should have seen with the proper use of his senses (see Salamone v. Barenbaum, 281 AD2d 199 ). Inasmuch as it appears that defendant may [*2]have been afforded less evidentiary leeway in defending this action than was extended to plaintiff in prosecuting it, the ends of "substantial justice" will be best served by remanding the matter for a new trial so that a complete record can be developed.
This constitutes the decision and order of the court.
Decision Date: October 20, 2005