Mirro v Kowalski

[*1] Mirro v Kowalski 2009 NY Slip Op 51163(U) [23 Misc 3d 1137(A)] Decided on June 1, 2009 Civil Court Of The City Of New York, Kings County Dear, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2009
Civil Court of the City of New York, Kings County

Michelle Mirro, Plaintiff,

against

Kellyann Kowalski and Miguel Angel Guerro, Defendants/Third party Plaintiffs, Gregory B. Wingfall, Third Party Defendant.



CV-146654-07/KI



Appearances:

Michele Mirro, Esq.

Plaintiff pro se

Jerry Christos, Esq.

Attorney for Defendant

375 Merrick Avenue

Westbury, New York 11590

Noach Dear, J.

Plaintiff commenced this action to recover for properly damage to her automobile caused by the negligence of defendant, KellyAnn Kowalski. The trial of the action took place on March 12, 2009 and on April 1, 2009. Counsel for defendant represented that liability was not being contested. Accordingly, the only issue tried was damages.

The evidence plaintiff introduced at trial concerning damages was a repair estimate prepared by defendant's insurance carrier. Defendant was insured by Government Employees Insurance Company (GEICO). Plaintiff, at GEICO's request, had brought her vehicle to one of its mechanics for an assessment of her damages. The mechanic prepared an estimate indicating that the cost of repairing the damage to her vehicle would be $2,134.04. Defendant's attorney objected to the admission of the repair estimate arguing that it consisted hearsay. He maintained that since no foundational testimony was elicited as how the repair estimate was made, it could not be admitted as a "business record" pursuant to CPLR 4518[a]. The court reserved decision on the objection. [*2]

After careful consideration, the Court now overrules defendant's objection. In Miller v. Sanchez, 6 Misc 3d 479, 482 [Civ Ct, Kings County 2004], a small claims action, Justice Jack Battaglia held that a single repair estimate, prepared by a mechanic employed by defendant's insurance carrier, was admissible to establish the extent to which plaintiff's automobile was damaged. He reasoned that The unity of interest between defendant and its carrier, and the carrier's authority to act on defendant's behalf to resolve the claim, are sufficient to render the carrier's estimate admissible against defendant (id. at 483, citing Prince, Richardson on Evidence, § 8-231, at 543 [11th Ed., Farell]; Letendre v. Hartford Accident and Indemnity Co., 21 NY2d 518, 289 NYS2d 183, 236 NE2d 467 [1968]; DiCamillo v. City of New York, 245 AD2d 332, 333, 665 NYS2d 97 [2d Dept. 1997] ). Justice Battaglia, in effect, held that the repair estimate constituted a vicarious admission of the defendant.

In Felipe v. Das, 22 Misc 3d 141(A), 2009 NY Slip Op. 50444(U) [App Term, 9th & 10 Jud Dists], also a small claims action, the Appellate Term adopted the rule of Miller v. Sanchez. In so doing, the court cited DiCamillo v. City of New York, 245 AD2d 332, 333 [1997], which, in short, held that a vicarious admission of a party constitutes admissible evidence against that party.

The court agrees with Justice Battaglia's reasoning in Miller v. Sanchez and the holding in Felipe v. Das. Implicit in both cases is that a repair estimated prepared by a defendant's insurance carrier is a vicarious admission of the defendant and therefore admissible in evidence against the defendant. This Court sees no reason why the rule of law enunciated in Miller v. Sanchez and Felipe v. Das should be limited to Small Claims proceedings, as it is settled law in this State that a vicarious admission of a party is admissible evidence against that party in any action, including criminal proceedings (see, e.g., DiCamillo, supra ., People v. Kallamni, 14 AD3d 316 787 NYS2d 1 [2005]; People v. Russo, 210 AD2d 128, 129, 621 NYS2d 844, 845 [1994] ).

For the above reasons, the court this finds that plaintiff established her entitled to recover damages from defendant in the amount of $2,134.04, with interest from the date of accident. The court is not making an award for plaintiff's loss of use of her vehicle because it was not alleged in plaintiff's complaint. Finally, since no evidence was introduced at trial establishing a prima facie case against third-party defendant Gregory B Wingfall, the third-party action is dismsised.

For the above reasons, it is hereby

ORDERED that judgment be entered in favor of plaintiff Michelle Mirro against defendant KellyAnn Kowalski in the amount of $2,134.00, with interest from August 7, 2007 plus costs and disbursements and dismissing the third- party action.

The foregoing constitutes the decision and order of the court.

Dated:June 1, 2009

Brooklyn, New York

______________________ [*3]

Hon. Noach Dear, J.C.C.