Gamboa v 245 PAS Prop. LLC

[*1] Gamboa v 245 PAS Prop. LLC 2013 NY Slip Op 52214(U) Decided on December 24, 2013 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 24, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
570912/13.

Roesmarie E. Gamboa, Plaintiff-Respondent, - -

against

245 PAS Property LLC, Defendant-Appellant, -and- Penmark Realty Corp. Defendant.

Defendant 245 PAS Property LLC appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, New York County (Jennifer G. Schecter, J.), entered on or about April 5, 2013, after trial, in favor of plaintiff and awarding her damages in the principal sum of $1,200.

Per Curiam.

Judgment (Jennifer G. Schecter, J.), entered on or about April 5, 2013, modified by vacating the damage award and directing a new trial solely on the issue of damages; as modified, judgment affirmed, without costs.

The trial court's resolution of the liability aspect of the within property damage claim in favor of plaintiff accords with the weight of the evidence presented at the small claims trial (see Williams v Roper, 269 AD2d 125 [2000], lv dismissed 95 NY2d 898 [2000]) and is not disturbed. Based on the evidence as a whole, and the testimony of the building management employees in particular, the trial court was warranted in finding that a number of plaintiff's electrical devices and appliances were "fried" as a result of "a defect in the [building's] electrical current over which defendant[-appellant], the building owner, had control," and in imposing liability on defendant-appellant for violating its nondelegable duty to maintain the premises in a reasonably safe condition (see Multiple Dwelling Law § 78).

The damage award is not sustainable, however, inasmuch as plaintiff offered but a ballpark guesstimate of the initial purchase price of the vaguely described electrical items claimed to have been damaged. The ends of "substantial justice" (CCA 1807) will best be served by affording plaintiff a final opportunity to demonstrate the "real value" (see Conboy v Studio 54, 113 Misc 2d 403, 406-407 [1982, Saxe, J.]) of the damaged personalty (see Correa v Midtown Moving, 4 Misc 3d 135[A], 2004 NY Slip Op 50798[U][App Term, 1st Dept 2004]). [*2]

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 24, 2013