Lippen v Jimmy's Jet Towing

[*1] Lippen v Jimmy's Jet Towing 2004 NY Slip Op 50221(U) Decided on March 31, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:McCABE, P.J., LIFSON and SKELOS, JJ.
NO. 2003-777 S C

LEWIS H. LIPPEN, Appellant,

against

JIMMY'S JET TOWING, Respondent.

Appeal by plaintiff on the ground of inadequacy from a small claims judgment of the Justice Court, Town of Riverhead, Suffolk County (R. Ehlers, J.), entered March 10, 2003, in favor of plaintiff in the principal sum of $1,490.

Judgment unanimously modified by increasing the amount of the award in favor of plaintiff to the sum of $2,078.27; as so modified, affirmed without costs.

Plaintiff commenced this small claims action to recover the sum of $2,915.67 for damage to his van as a result of an accident involving defendant's vehicle, which occurred on August 26, 2002. Although the evidence adduced at trial established that plaintiff's vehicle was damaged as a result of the negligence of defendant, the court below apparently found that the damage to the rear door of the van was pre-existing and did not award any sum to plaintiff therefor. Inasmuch as that determination turned upon the credibility of the witnesses, it should not be disturbed (see Williams v Roper, 269 AD2d 126 [2000]).

Nevertheless, upon a review of the record, it is our opinion that in order for substantial justice to be done between the parties (UJCA 1807), the judgment in favor of plaintiff should be increased from $1,490 to $2,078.27, to reflect the amounts estimated to be necessary to repair both the front and rear damage to the vehicle, but excluding repair to the rear door.
Decision Date: March 31, 2004