McFaddin v C.A. Putnam Constr.

[*1] McFaddin v C.A. Putnam Constr. 2009 NY Slip Op 50742(U) [23 Misc 3d 133(A)] Decided on April 20, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., SCHEINKMAN and LaCAVA, JJ
2007-1680 N C.

Willie McFaddin, Respondent,

against

C.A. Putnam Construction, Appellant.

Appeal from a judgment of the City Court of Glen Cove, Nassau County (Joel B. Meirowitz, J.), dated December 12, 2005. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $4,200.

Judgment reversed without costs and a new trial ordered limited to the issue of damages.

Plaintiff commenced this small claims action to recover for defendant's failure to finish replacing the windows in her house and other related work. At trial, defendant conceded that he did not complete some of the agreed-upon work. During the trial, the court adjourned the matter to afford plaintiff an opportunity to submit proof of damages, instructing plaintiff to return on the next scheduled court date with one estimate, which plaintiff did. Following the trial, the court awarded plaintiff the principal sum of $4,200 based on the one estimate provided by plaintiff.

Upon a review of the record, we find that the City Court erred in finding that plaintiff met her burden of proof with respect to damages based on one estimate. While expert testimony is not required in actions brought in the Small Claims Part of the court, and a plaintiff may, in the alternative, satisfy the burden of proof on damages by submitting an itemized bill or invoice, receipted or marked paid, or two itemized estimates (see UCCA 1804), here the sole proof of damages was one estimate. However, in light of the fact that the City Court directed plaintiff to return to court with only one estimate, substantial justice (see id.) requires that the matter be remanded for a new trial on the issue of damages, since plaintiff was led to believe that one estimate would suffice to prove damages. Upon the new trial, the court shall award damages only for the items of work that defendant had agreed to, but failed, to complete.

Rudolph, P.J., Scheinkman and LaCava, JJ., concur. [*2]
Decision Date: April 20, 2009