Retamozzo v Settino

[*1] Retamozzo v Settino 2004 NY Slip Op 50670(U) Decided on June 23, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 23, 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. 2003-1389 N C

ARMAND F. RETAMOZZO, Appellant,

against

RONALD G. SETTINO, Respondent.

Appeal by plaintiff from a small claims judgment of the District Court, Nassau County (A. Cooper, J.), entered on March 5, 2003, which dismissed his action.

Judgment unanimously affirmed without costs.

Plaintiff instituted this small claims action to recover damages allegedly caused to his 1988 Buick by defendant . At trial, plaintiff failed to establish that any damage to this 14-year-old automobile was caused by defendant. Plaintiff had testified that when he purchased the vehicle a few weeks before this incident, it had dents or scrapes on it.
In any event, plaintiff failed to meet his burden of proof with respect to his damage claim. It was incumbent upon plaintiff, under the circumstances presented, to demonstrate that the cost of repairing the vehicle, as reflected in the two estimates (UDCA 1804), did not exceed either the diminution in the market value of the vehicle caused by the incident, or the market value of the automobile in its pre-accident condition (Underweiser v Gans, 153 AD2d 848 [1989], app den 75 NY2d 706 [1989]; 8B NY Jur 2d, Automobiles and Other Vehicles §§ 1131, 1132).
Decision Date: June 23, 2004