Fisher v Projects Unlimited Inc.

[*1] Fisher v Projects Unlimited Inc. 2004 NY Slip Op 50365(U) Decided on April 27, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
NO. 2003-873 D C

LEITH FISHER, Respondent,

against

PROJECTS UNLIMITED INCORPORATED d/b/a THE SHIPPING PLACE, Appellant.

Appeal by defendant from a small claims judgment of the Justice Court, Town of Hyde Park, Dutchess County (V. Sammarco, J.), entered February 6, 2003, which awarded plaintiff the sum of $3,000.

Judgment unanimously reversed without costs and action dismissed.

Plaintiff commenced this small claims action, claiming that she took three statues, one shield and one spear to defendant's shop to be shipped to someone who was going to purchase them from her. Although defendant wrapped the items and packaged them using styrofoam peanuts, plaintiff claims that one of the statues was broken when it arrived at its destination and that, as a result, the purchaser refused to purchase the statue.

At trial, plaintiff did not present the statue or a picture which depicted the broken statue. She also failed to present non-hearsay evidence establishing that the statue was broken when it arrived at its destination. Inasmuch as a judgment "which rests wholly on hearsay evidence cannot stand in any court" (Levins v Bucholtz, 2 AD2d 351, 351-352 [1956]; see Rubin v Medynski, 195 Misc 2d 869, 871 [2003] [App Term, 9th & 10th Jud Dists]), and proof that the statue was in good condition when defendant took possession of it and that it was broken when it arrived at its destination was a prerequisite to plaintiff's recovery (see e.g. Gerdau Co. v Bowne-Morton Stores, 1 AD2d 581 [1956], affd 2 NY2d 905 [1957]), the judgment must be reversed and the action dismissed since the judgment did not render substantial justice between the parties according to the rules and principles of substantive law (see UJCA 1807). Moreover, we note that even if plaintiff properly established that the statue was damaged when it arrived at its destination, the judgment would nevertheless have to be reversed and
the action dismissed due to her failure to properly establish the amount of her damages (see e.g. Atlantic Mut. Ins. Co. v Noble Van & Storage Co., 146 AD2d 729 [1989]; Fink v DePew, NYLJ, [*2]Dec. 10, 2003 [App Term, 9th & 10th Jud Dists]).
Decision Date: April 29, 2004