Alvarado v Laser

[*1] Alvarado v Laser 2009 NY Slip Op 51063(U) [23 Misc 3d 1133(A)] Decided on May 7, 2009 Nassau Dist Ct Bruno, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 7, 2009
Nassau Dist Ct

Olga Alvarado, Plaintiff,

against

Smart Laser a/k/a Body Solutions of Westbury, LLC, Defendant.



NSC 14/09



cc:Olga E. Alvarado

3 Fairway Drive

Inwood, New York 11096

Smart Laser a/k/a Body Solutions of Westbury, LLC

1400 Old Country Road

Westbury, New York 11590

Robert A. Bruno, J.

DECISION AFTER INQUEST

FACTS

On or about September 29, 2007 the plaintiff entered into a contract, known as a procedure agreement ("First Procedure Agreement"), with the defendant, Body Solutions of Westbury, LLC, for a non-surgical, cosmetic procedure known as "Thermage"[FN1] and "Diamondtome Microdermabrasion"[FN2], which, according to the plaintiff, is a cosmetic procedure used to tighten the sagging skin around the eyes, cheeks, and entire face (plaintiff's Exhibit 1).

The First Procedure Agreement also provided that the plaintiff would pay the defendant four thousand nine hundred ($4,900.00) dollars by making sixty (60) payments in the amount of one hundred nine ($109.00) dollars to Care Credit every month for the next sixty (60) months (plaintiff's Exhibit 1 and 2).

Plaintiff testified that she had the cosmetic procedure performed and was not satisfied with the results. The plaintiff testified that she felt her sagging skin was not tightened at all. The Court inquired if the plaintiff had any "before" and "after" photographs of her face but the plaintiff claimed they were in the possession of the defendant.

Although the plaintiff requested the Court to opine upon how her skin around her eyes at her inquest, the Court respectfully declined. [*2]

As a result of plaintiff's dissatisfaction with the Thermage and Diamondtome Microdermabrasion procedure, the parties negotiated a new procedure agreement ("Second Procedure Agreement") in which the defendant issued a credit to plaintiff in the amount of four thousand nine hundred ($4,900.00) dollars, in order for her to undergo a new procedure called "blepharoplasty", which according to plaintiff, is for eyelid skin and fat removal for loose skin above the eyes (plaintiff's Exhibit 3).

Subsequent to the execution of the Second Procedure Agreement, but prior to the defendant rendering the new cosmetic services, the plaintiff appeared on television and discussed her dissatisfaction with the defendant.

As a result of plaintiff's television appearance, the defendant declined to perform the new cosmetic services called for in the Second Procedure Agreement and plaintiff commenced the instant action to recover four thousand nine hundred ($4,900.00) dollars.

DISCUSSION

Since the plaintiff entered into an agreement with Care Credit in order to finance her payment to the defendant, regarding her cosmetic services, which calls for monthly payments over the next sixty (60) months at the rate of one hundred nine ($109.00) dollars per month, the plaintiff has not been damaged for the full amount of four thousand nine hundred ($4,900.00) dollars, the amount claimed herein, since the Care Credit statement plaintiff introduced into evidence (Exhibit 2) indicates a balance of three thousand eight hundred thirty dollar and forty-seven ($3,830.47) cents.

Generally, in order to prove damages a party must either: (I) submit an itemized bill or invoice, receipted or marked paid, or (ii) two independent itemized estimates for services or repairs (Uniform District Court Act §1804).

A party that presents a single estimate with corroborating evidence may be granted a damage award that the Court deems appropriate so long as the evidence is supported by a preponderance of the evidence. See, Angerami v. Nationwide Ins. Co., 133 Misc 2d 1086, 1088 (Albany City Ct 1986) (a contractor's estimate coupled with the plaintiff's otherwise credible testimony was sufficient to prove damages); DerOhannesian v. Bergman, 134 Misc 2d 540, 542 (Albany City Ct 1987) (a single repair estimate, supported by the plaintiff's credible testimony and a photograph showing the damage without objection from the opposing party was sufficient to prove damages); Miller v. Sanchez, 6 Misc 3d 479, (New York City Civil Court 2004) the Court concluded, that a single repair estimate is admissible to prove damages when admissibility can be based on other common law or statutory rules and that admissibility is supported by caselaw concerning the admissibility of an opposing party's expert reports and by the exception to the hearsay rule for party admissions, (the single estimate brought forth by the plaintiff when coupled with the testimony of the defendant's expert sufficiently proved the value of the damages).

In the instant case, the plaintiff does not fall within any of the traditional enumerated methods [*3]listed above to establish her damages. However, the defendant did issue the plaintiff a credit in the amount of four thousand nine hundred ($4,900.00) dollars to have a new cosmetic procedure performed called blepharoplasty (Exhibit 3), thereby acknowledging the plaintiff is owed a four thousand nine hundred ($4,900.00) dollar credit. The plaintiff further testified that the defendant subsequently refused to perform the blepharoplasty thereby denying the plaintiff of her four thousand nine hundred ($4,900.00) credit.

Since the Uniform District Court Act §1804 does not state nor imply that the exclusive method of proving damages is through a paid receipt or two estimates, the Court may award damages to a litigant that has proven their damages with competent proof by a preponderance of the evidence.

A Small Claims Court is limited to any cause of action for money damages only, it does not possess the ability to grant equitable relief such as a specific performance, (Uniform District Court §1801) (See, Powers v. Midtown Moving Storage, Inc., 15 Misc 3d 142(A) (App. Term, 2d Dep't 2007). Similarly, the Court can not grant injunctive relief, (See, Carren v. Westchester County Community College, 176 Misc 2d 490 NY City Ct. 1998), reformation of contracts, (See, Mormon v. Acura of Valley Stream, 190 Misc 2d 697 App. Term 2d Dep't 2001), declaratory relief (See, Whitfield v. State Farm Mut. Auto Ins. Co., 12 Misc 3d 428 Civ Ct. NY County 2006), or conditional judgments.

Since this Court is unable to grant the equitable relief that may be appropriate, this Court is faced with the dilemma of denying plaintiff's claim without prejudice to commence a new action in a court of competent jurisdiction or arriving at a decision in such a matter as to do substantial justice. In Mowgelli v. Cabral, 166 Misc 2d 240, 244; 632 NYS2d 927 (City Court of Yonkers (1995) the Court held,

Such a dismissal would defeat the salutary function of Small Claims Courts which is to do "substantial justice" [U.C.C.A. §1804; Hellman, supra , 46 AD2d 661, 359 NYS2d at 828 (dissenting opinion; "To deny access to the Small Claims Court ... is to ignore the policy embodied in (Small Claims Court Act) which seeks to provide a simple, informal low cost method of resolving litigation ..."); Celona v. Celona, N.Y.L.J., Mar. 25, 1994, p. 36, col. 2 (Yonkers Cty. Ct.) ("... the goal of Small Claims courts has been to provide a simplified and expeditions mechanism whereby economically unlitigatable claims may be heard without the burden of being bound by statutory rules of practice, procedure, pleading and evidence"); Siegel, Practice Commentaries, McKinney's New York Cons. Law of NY, Book 29A, CCA 1801, p. 278-279 ("When only a small claim' sum is sought, a plaintiff compelled to resort to the plenary procedures of a supreme court action may in effect be denied the use of the courts altogether ... It is quite possible to perform an injustice at the jurisdictional threshold by depriving an applicant of the small claims part altogether ... The mischief of insisting that a plaintiff with a little claim pursue remedies he cannot afford ...")].

Based upon the foregoing, this Court finds that the plaintiff is entitled to the four thousand nine hundred ($4,900.00) dollars credit issued by the defendant in the form of an agreement for additional cosmetic services the defendant refused to perform. [*4]

Therefore, pursuant to the Uniform District Court Act §1804 and §1805(a), this Court awards plaintiff the sum of four thousand nine hundred ($4,900.00) dollars; however, the defendant may avoid paying this judgment if, within ten (10) days of receipt of this decision, order and judgment, the defendant issues a credit to Care Credit in the amount of four thousand nine hundred ($4,900.00) dollars for plaintiff's account and serves upon plaintiff and files with the Clerk of the Court an affidavit attesting to the fact the aforementioned credit was issued to Care Credit for plaintiff's account.

This constitutes the decision and order of the Court.

SO ORDERED:

________________________________________

DISTRICT COURT JUDGE

Dated: May 7, 2009

cc:Olga E. Alvarado

3 Fairway Drive

Inwood, New York 11096

Smart Laser a/k/a Body Solutions of Westbury, LLC

1400 Old Country Road

Westbury, New York 11590 Footnotes

Footnote 1: The use of capacitive radio frequency to treat lax and sagging skin by tightening and reviewing collagen deep down, through all three skin layers.

Footnote 2: To polish away the top layer of skin using suction through hollow titanium wand fastened with diamonds to expose healthier skin and promote new skin growth.