Echezona v Arverne Assoc.

[*1] Echezona v Arverne Assoc. 2012 NY Slip Op 51925(U) Decided on October 5, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and SOLOMON, JJ
2011-419 Q C.

Sheila Echezona as Parent and Natural Guardian of VICTORIA PAMELA EKEOCHA, Respondent,

against

Arverne Associates, Appellant. SHEILA ECHEZONA, Respondent, ARVERNE ASSOCIATES, Appellant.

Appeals from judgments of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered July 22, 2010. The judgments, in jointly tried small claims actions, awarded plaintiff the principal sum of $5,000 in each action.

ORDERED that, on the court's own motion, the appeals are consolidated for the purposes of disposition; and it is further,

ORDERED that the judgment in the action entitled Sheila Echezona as Parent and Natural Guardian of Victoria Pamela Ekeocha v Arverne Associates is reversed, without costs, and the action is dismissed; and it is further,

ORDERED that the judgment in the action entitled Sheila Echezona v Arverne Associates is modified by reducing the amount awarded plaintiff to the principal sum of $3,600; as so modified, the judgment is affirmed, without costs.

Plaintiff resided in an apartment which, she claimed, was owned by defendant. In October 2009, as the result of the actions of another tenant, whose apartment was above plaintiff's, water intruded into plaintiff's apartment through her ceiling. Plaintiff continued to pay rent to defendant until April 2010, when she moved to another apartment. She commenced two separate small claims actions, one seeking to recover the sum of $2,000, subsequently amended to $5,000, on behalf of her minor daughter, for personal injuries she claimed her daughter had sustained (Action No. 1), and the other seeking to recover the sum of $3,000, subsequently amended to $5,000, on her own behalf (Action No. 2). There was a joint nonjury trial of the [*2]actions (see CPLR 602), at the conclusion of which plaintiff was awarded the principal sum of $5,000 in each action. Defendant contends on appeal that plaintiff impermissibly split a cause of action in order to circumvent the jurisdictional limits of the Small Claims Part of the Civil Court, that the damages awarded exceeded those originally demanded by plaintiff, and that plaintiff failed to present evidence to justify a total of $10,000 in damages.

Since each action sought to recover for injuries sustained by a different individual, there was no splitting of a single cause of action. Furthermore, since the amount sought in each action was within the jurisdictional limit of the Small Claims Part of the Civil Court, the court was not barred from adjudicating the two cases (see generally Board of Mgrs. of Mews at N. Hills Condominium v Farajzadeh, 189 Misc 2d 38, 38 [App Term, 9th & 10th Jud Dists 2001]). Moreover, as, absent prejudice to the defendant, amendment of the pleadings including the ad damnum clause is freely permitted at any time (CPLR 3025; CCA 909; see 84 NY Jur 2d, Pleading § 248), there was no error in awarding a judgment to plaintiff which exceeded the amount she originally sought to recover in each action, but which was nevertheless within the jurisdictional limit of the Small Claims Part of the court.

In Action No. 1, plaintiff failed to establish, through expert testimony, a causal relationship between her daughter's medical problems and the conditions in her apartment which she claimed had caused or exacerbated her daughter's ailments (see Fraser v 301-52 Townhouse Corp., 57 AD3d 416, 418 [2008]). Plaintiff also failed to prove any medical expenses. Consequently, we conclude that plaintiff was not entitled to recover damages from defendant in Action No. 1, and substantial justice between the parties according to the rules and principles of substantive law (CCA 1804, 1807) requires that the judgment in that action be reversed and the action dismissed.

On the appeal in Action No. 2, defendant only argues that the evidence was insufficient to support the $5,000 judgment. Plaintiff proved, and defendant does not contest, that she paid $1,800 for alternative accommodations. Plaintiff also testified that, a year earlier, she had spent $1,800 on new carpeting, which had been destroyed by the water incursion. Contrary to defendant's contention, plaintiff's evidence was adequate to establish the $1,800 value of her damaged carpet (see Landa v Organic Cleaners, 32 Misc 3d 126[A], 2011 NY Slip Op 51222[U] [App Term, 9th & 10th Jud Dists 2011]). However, we conclude that, to the extent that it exceeded $3,600, the damages award to plaintiff in Action No. 2 failed to render substantial justice between the parties according to the rules and principles of substantive law (CCA 1804, 1807). Accordingly, the judgment in Action No. 2 is modified by reducing the amount awarded plaintiff to the principal sum of $3,600.

Weston, J.P., Rios and Solomon, JJ., concur.
Decision Date: October 05, 2012