Taylor v Solimine

[*1] Taylor v Solimine 2012 NY Slip Op 52317(U) Decided on December 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., ALIOTTA and SOLOMON, JJ
.

Anthony Taylor, Respondent,

against

Robert F. Solimine, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 12, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $4,536.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial limited to the issue of damages.

In this small claims action, plaintiff alleges that defendant, Robert F. Solimine, a marshal of the City of New York, wrongfully sold plaintiff's vehicle at public auction to satisfy a judgment that had been entered against plaintiff for unpaid parking tickets. Plaintiff testified, at a nonjury trial, that he had been advised that he could retrieve the vehicle on or before May 6, 2010 if he paid the outstanding balance due. On May 6, 2010, he came to defendant's office at 3:00 P.M. to make the payment; however, after he paid $1,100 to release his vehicle, he was informed that the vehicle had already been sold at auction at around 1:00 P.M. that day for $2,700. Defendant testified that, on April 15, 2010, he had mailed a form to plaintiff notifying him that his vehicle would be auctioned in 10 days if he did not pay the outstanding balance. Defendant further stated that he had followed the appropriate procedures in selling plaintiff's vehicle and satisfying the judgment. Although defendant offered to refund to plaintiff the excess amount recovered, which defendant claimed was $2,339.67, plaintiff refused and commenced this action to recover the full value of the vehicle. After trial, the Civil Court awarded plaintiff judgment in the principal sum of $4,536.

Upon a review of the record, we conclude that the judgment did not render substantial justice between the parties according to the rules and principles of substantive law (see CCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]).

We find that plaintiff was entitled to recover his $1,100 payment, plus the proceeds of the sale, less the amount necessary to satisfy the judgment and the fees and expenses incurred by defendant in auctioning the vehicle. However, given the incomplete state of the record, we cannot ascertain the proper amount of the fees and expenses incurred by defendant. Although the Civil Court apparently considered several documents relating to defendant's expenses, these [*2]documents are not in the record. In the absence of a complete record, a new trial on the issue of damages is appropriate (see Colorito v Crown Heating & Cooling, Inc., 6 Misc 3d 131[A], 2005 NY Slip Op 50082[U] [App Term, 9th & 10th Jud Dists 2005]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial limited to the issue of damages.

Rios, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: December 13, 2012