Hickey v T & E Serv. Sta.

[*1] Hickey v T & E Serv. Sta. 2006 NY Slip Op 51183(U) [12 Misc 3d 133(A)] Decided on June 7, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2005-1223 K C.

Edward Hickey, Respondent,

against

T & E Service Station, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered May 8, 2003. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,000.

Judgment reversed without costs and judgment directed to be entered in favor of defendant dismissing the action.

Plaintiff commenced this small claims action to recover damages for, inter alia, defective auto repair, breach of contract and loss of income. Although the determination of the court below as to credibility and liability could clearly have been reached under a fair interpretation of the evidence (see Perez v Garcia, 304 AD2d 544 [2003]), its $3,000 award in favor of plaintiff is not supported by the record. Since CCA 1804 provides that "[a]n itemized bill or invoice, receipted or marked paid, or two itemized estimates for services or repairs, are admissible in evidence and are prima facie evidence of the reasonable value and necessity of such services and repairs," plaintiff's submission of one repair estimate failed to establish his damages for the cost to repair his truck.

Although small claims courts are not bound by statutory provisions or rules of practice, procedure, pleading or evidence (see CCA 1804), a small claims judgment may not stand on hearsay alone (see Zehnik v Biderman Indus, USA., 242 AD2d 227, 228 [1997]; Levins v Bucholtz, 2 AD2d 351 [1956]; Hudson House LLC v Pointdujour, 5 Misc 3d 136[A], 2005 NY Slip Op 51547[U] [App Term, 2d & 11th Jud Dists]). Consequently, a document, which was admitted into evidence without any foundation offered for its admission pursuant to an exception to the hearsay rule, was not legally competent to establish the amount of plaintiff's alleged loss of income from his snow removal business. In view of the foregoing, plaintiff failed to establish the [*2]amount of his [*3]
damages. Since substantial justice was not done between the parties in accordance with the rules and principles of substantive law (CCA 1807), the judgment is reversed and the action dismissed.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: June 7, 2006