Santoro v Rizzo

[*1] Santoro v Rizzo 2009 NY Slip Op 51266(U) [24 Misc 3d 127(A)] Decided on June 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and SCHEINKMAN, JJ
2008-1056 D C.

Nivine Santoro, Respondent,

against

Robert (Bob) Rizzo, Appellant.

Appeal from a judgment of the Justice Court of the Town of Hyde Park, Dutchess County (David L. Steinberg, J.), entered December 26, 2007. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $712.22.

Judgment reversed without costs and matter remitted to the Justice Court for a new trial limited to the issue of damages.

Plaintiff Nivine Santoro commenced this small claims action against "Robert (Bob) Rizzo" to recover the principal sum of $1,315. The proof at the nonjury trial established that Bob Rizzo Custom Masonry, Inc. was hired by plaintiff to construct a brick mailbox and stand. The proof further showed that the mailbox was constructed in a location that violated the State's right of way and that no approval or permit was
obtained for said construction. Plaintiff also introduced an invoice to establish the cost of removing the mailbox and stand. After trial, the Justice Court awarded plaintiff the principal sum of $712.22 against "Robert (Bob) Rizzo."

While we agree with the Justice Court with respect to its determination on the issue of liability, we note that the caption should be amended to reflect that the name of the defendant is Bob Rizzo Custom Masonry, Inc. (see CPLR 305 [c]; see generally UJCA 1814), since the evidence adduced at trial established that the corporation was the party with which plaintiff contracted and which is liable for the damages. However, with respect to the issue of damages in this small claims action, the Justice Court erred in basing its award upon an invoice which was [*2]not receipted or marked paid (see UJCA 1804). In view of the foregoing, we find that substantial justice was not done between the parties in accordance with the rules and principles of substantive law (UJCA 1807). Accordingly, the judgment is reversed and the matter remitted to the Justice Court for a new trial on the issue of damages at which plaintiff may be afforded an opportunity to establish her damages either by expert testimony or in accordance with UJCA 1804.

Rudolph, P.J., and Tanenbaum J., concur.

Scheinkman, J., taking no part.
Decision Date: June 19, 2009