Laverty v Empire State Bldrs. & Contrs., Inc.

[*1] Laverty v Empire State Bldrs. & Contrs., Inc. 2004 NY Slip Op 51486(U) Decided on December 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 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.
2004-296 RO C

BRENDA LAVERTY, Respondent,

against

EMPIRE STATE BUILDERS & CONTRACTORS, INC., Appellant.

Appeal by defendant from a small claims judgment of the Justice Court, Town of Clarkstown, Rockland County (C. Johns, J.), entered December 16, 2003, awarding plaintiff the principal sum of $1,200 and dismissing defendant's counterclaim.

Judgment unanimously affirmed without costs.

In this small claims action, substantial justice was done between the parties in accordance with the rules and principles of substantive law (UJCA 1804, 1807). Plaintiff sufficiently proved her damages, the cost of repair of a roof defectively constructed by defendant, by submitting an itemized bill for repair of the roof and interior water damage that was marked "paid" (UJCA 1804). Neither the nature of the defect claimed nor the cost of repairs was disputed below. The court properly awarded plaintiff the cost of repairs, as shown on the paid bill submitted into evidence (see Brushton-Moira Cent. School Dist. v Thomas Assocs., 91 NY2d 256, 262 [1998]; Murov v Celentano, 3 Misc 3d 1 [App Term, 9th & 10th Jud Dists 2003]).

Defendant's representative appeared on the trial date and made no objection below to either service of process in the action or the name under which defendant was sued. He has not attempted to argue that Empire State Builders & Contractors Inc. did not perform the work at issue or to otherwise show prejudice as a result of its original party designation as "Empire State Builders." Improper party designations in small claims actions are mere irregularities unless actual prejudice is shown (see Buonomo v Stalker, 40 AD2d 733 [1972]; Murov, 3 Misc 3d 1), [*2]and, moreover, may be corrected by the court absent such a showing (UJCA 1804, 1814).

The court properly dismissed defendant's counterclaim, as the bills submitted purporting to show that plaintiff owed this amount were between defendant and its subcontractors, not defendant and plaintiff, and no other evidence of the work was submitted. [*3]

Defendant's remaining contentions are without merit.
Decision Date: December 01, 2004