Zykoff v Manigault

[*1] Zykoff v Manigault 2004 NY Slip Op 50717(U) Decided on July 1, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 1, 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. 2003-629 OR C

FELIX ZYKOFF, d/b/a IDEAL WATER, Appellant,

against

GLENN L. MANIGAULT, Respondent.

Appeal by plaintiff from a small claims judgment of the Justice Court, Town of Woodbury, Orange County (E. Kellman, J.), entered April 21, 2003, in favor of defendant dismissing the action.

Judgment unanimously reversed without costs and matter remanded for a new trial.

Substantial justice was not done between the parties in this small claims action for breach of contract (UJCA 1804, 1807). Pursuant to the lease for water softening
equipment, defendant could apply one year's rental payments plus the cost, if any, of installation toward the stated purchase price of $745, or could continue to rent the equipment on a three-month basis for $51 indefinitely.

A new trial is warranted in the interest of justice in light of the uncontroverted evidence that defendant stopped making rental payments pursuant to the lease. At said new trial, there should be a further development of the facts surrounding defendant's alleged attempt to exercise his purchase option, whether plaintiff improperly refused to allow the outright purchase of the equipment and whether defendant waived said improper refusal by continuing to make rental payments.
Decision Date: July 01, 2004