Jones v Verkey
Annotate this CaseDecided on January 14, 2009
Seneca County Ct
Scott Jones, Plaintiff-appellant,
against
Dennis Verkey, Defendant-appellee.
41385
Scott Jones, plaintiff-appellant,
pro se
Dennis Verkey, defendant-appellee.
pro se
W. Patrick Falvey, J.
Plaintiff-appellant appeals from an order of the Court of the Town of Seneca Falls,
Small Claims Part, granting the plaintiff's claim for a judgment, in part, by awarding the amount of
$160.00, including the $10.00 Court fee; and denying the defendant's counterclaim.
The plaintiff claimed that he had rented his motorcycle to the defendant for a week, for a total of $375.00. The plaintiff understood that the defendant would be using the motorcycle in Florida. It took at least a month for the defendant to return the motorcycle to the plaintiff, and when he did return it, the plaintiff alleged that it had been damaged by salt, causing rust and corrosion, and that a part had been broken. The amount of damages claimed amounted to $1160.35. Further, the defendant had not paid the total rental amount of $375.00, but only $225.00.
Following a bench trial, the Town of Seneca Falls Justice Court granted the plaintiff's claim, in part, by granting plaintiff a judgment for the amount of unpaid rent as well as $10 court costs.
The plaintiff in his brief points to certain of the trial testimony, which supported his position that the defendant damaged his motorcycle by not washing it and wiping it down sufficiently while it was exposed to salt during the defendant's stay at the beach in Florida, and by failing to wash it once he left Florida, and allowing it to sit in an enclosed trailer for a month after it had been brought back to New York.
No brief was filed by the defendant. [*2]
On an appeal from a small claims judgment, the Court is limited in its review to a determination of whether substantial justice was done between the parties according to the rules and principles of substantive law. UJCA section 1804. To be overturned, the small claims decision must be so shocking as to not be substantial justice. Coppola v Kandey Co., 236 AD2d 871.
A fundamental principal of substantive law is that the trial court may only consider evidence presented to it by the parties. Here, the town justice in her decision notes that she had done some research on her own, and learned that rust on the rotor as shown by the plaintiff in pictures presented to the court, could not have occurred from being used for a week in Florida. By consulting such authority after the proofs were closed, the justice based her decision on proof that the parties could not access, and they had no opportunity to cross examine this witness or rebut such proof. This violated the principal of fundamental fairness.
In reviewing on appeal a court-tried case, if the record is adequate, the appellate court need not send the case back for retrial on reversing the decision of the trial court, but may render whatever judgment the trial judge should have rendered. Siegel's New York Practice, 4th Edition, section 529, citing CPLR 5501; Thompson v City of New York, 60 NY2d 948; Northern Westchester Professional Park Associates v Town fo Bedford, 60 NY2d 492; Society of New York Hosp.v Burnstein, 22 AD2d 768. See also CPLR 5522.
On review of the record, the court credits the testimony of the defendant's witness, Larry Salarno, who accompanied the defendant to Florida. Mr. Salarno testified that the defendant did not wash the plaintiff's motorcycle every day, but only once while they were in Florida. It is also undisputed that the motorcycle sat in an enclosed trailer for a month after defendant returned to New York and before the defendant returned the motorcycle to the plaintiff. During his testimony, the defendant admitted that he had agreed to pay the plaintiff $700 when the plaintiff first called him to complain about the rust. The court finds that upon the photographic proof of the plaintiff, showing the rust spots, the proof that the defendant failed to return the motorcycle to the plaintiff for a month, and upon the testimony and other exhibits, the plaintiff proved that the motorcycle suffered damage while in the care of the defendant.
Plaintiff sought reimbursement for a new rear tire, claiming the defendant had mistreated the
motorcycle, causing damage to the tire, but his proof did not sustain this claim, as both Mr. Salarno and
the defendant testified as to how the motorcycle was used by the defendant in Florida, and no misuse
was established. Thus, in the interest of doing substantial justice between the parties, the amount of the
judgment granted by the Town Court is modified to the amount of $730.00 broken down as follows:
$720.00 for the damages claimed by the plaintiff and $10.00 for court costs. The $720.00 is in lieu of
any unpaid rental, since this is also the amount the plaintiff originally sought from the defendant before
commencing the action, and is the amount plaintiff testified that he paid for the damages sustained.
The lower Court's judgment is therefore modified to the extent that judgment is granted to
the plaintiff in the amount of $730.00.
THIS CONSTITUTES THE DECISION, JUDGMENT AND ORDER OF THE COURT
SO ORDERED.
DATED: January 14, 2009.
s/_____________________________ [*3]
W. Patrick Falvey
Acting Seneca County Court Judge
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