McNeil v SLR Indus., Inc.

[*1] McNeil v SLR Indus., Inc. 2009 NY Slip Op 52467(U) [25 Misc 3d 142(A)] Decided on December 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: MOLIA, J.P., NICOLAI and TANENBAUM, JJ
2009-160 S C.

Patricia McNeil and WALTER McNEIL, Respondents,

against

SLR Industries, Inc., Appellant.

Appeal from a judgment of the District Court of Suffolk County, Second District (Toni A. Bean, J.), entered July 9, 2008. The judgment, after a nonjury trial, awarded plaintiffs the principal sum of $2,000.

ORDERED that the judgment is reversed without costs and the action is dismissed.

In this small claims action, plaintiffs seek to recover damages for defendant's allegedly defective resurfacing of their driveway. After a nonjury trial, the District Court found in favor of plaintiffs in the principal sum of $2,000. Upon a review of the record, we find that the court's determination failed to provide the parties with substantial justice according to the rules and principles of substantive law (UDCA 1804, 1807), as the court's conclusion could not be reached under any fair interpretation of the evidence adduced at trial (see generally Claridge Gardens v Menotti, 160 AD2d 544 [1990]). The agreement between the parties expressly excluded surface cracking and puddling of water. Moreover, plaintiffs failed to establish that defendant resurfaced the driveway with the wrong grade of asphalt. In any event, plaintiffs failed to establish by expert testimony or otherwise (see UDCA 1804) that the entire driveway had to be ripped up and replaced. Accordingly, the judgment awarding plaintiffs the sum of $2,000 is reversed and the action is dismissed.

Molia, J.P., Nicolai and Tanenbaum, JJ., concur.
Decision Date: December 07, 2009