Midwood Doors & Windows v Tran

[*1] Midwood Doors & Windows v Tran 2009 NY Slip Op 51146(U) [23 Misc 3d 147(A)] Decided on June 8, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 8, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2008-965 K C.

Midwood Doors & Windows, Respondent,

against

Kristina Tran, Appellant.

Appeal from a judgment and order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered November 1, 2007 and January 2, 2008, respectively. The judgment, after a nonjury trial, awarded plaintiff the sum of $5,000. The order denied defendant's motion to vacate the judgment.

Judgment modified by reducing the amount of the award to plaintiff to the sum of $4,324.16 and by further providing that contemporaneously with the payment of the judgment, plaintiff shall make available to defendant the subject door; as so modified, judgment affirmed without costs.

Appeal from order dismissed as academic.

Upon a review of the record in this small claims action for breach of contract, we find that the Civil Court's determination that the contract was not a home improvement contract within the purview of section 20-387 of the Administrative Code of the City of New York is supported by the record. However, the record does not support an award in excess of the contract price, and the judgment must also be reduced to reflect defendant's partial payment thereon. Further, substantial justice requires that the judgment be modified to provide that payment of the judgment is conditioned upon plaintiff making available to defendant the subject door (CCA 1805, 1807; see also UCC 2-709).

We find defendant's other contentions on appeal to be without merit.

The appeal from the order is rendered academic in light of our disposition with regard to the judgment.

Pesce, P.J., Golia and Steinhardt, JJ., concur. [*2]
Decision Date: June 08, 2009