Kee v Eastchester Hgts. LP

[*1] Kee v Eastchester Hgts. LP 2013 NY Slip Op 50299(U) Decided on March 1, 2013 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 1, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Torres, J.P., Schoenfeld, Shulman, JJ
570255/12.

Ricky Kee, Plaintiff-Respondent,

against

Eastchester Heights LP, Defendant-Appellant.

Defendant appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), entered December 28, 2011, after trial, in favor of plaintiff and awarding him damages in the principal sum of $2,000.

Per Curiam.

Judgment (Ben R. Barbato, J.), entered December 28, 2011, reversed, without costs, and judgment directed in favor of defendant dismissing the action.

The judgment issued in plaintiff's favor upon the trial of this small claims action did not achieve "substantial justice" consistent with substantive law principles (see CCA 1804, 1807). Plaintiff's trial assertion that the chemical spray used by defendant's contractor in an effort to rid plaintiff's apartment of bedbugs somehow caused the "swelling, crack[ing] [and] breaking" of his furniture,is unsupported by a professional opinion or other competent evidence. We note, significantly, the undisputed record showing that the same chemical was applied in the apartment on at least two prior occasions without incident or complaint by plaintiff. " A judicial award, even one issued in the context of a small claims action, must rely upon competent evidence, and not mere inference or surmise" (Rollock v Gerald Modell Inc., 169 Misc 2d 663, 665 [1996]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: March 01, 2013