Diaz v Powell

[*1] Diaz v Powell 2013 NY Slip Op 52234(U) Decided on December 30, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
571002/13.

Esperanza Diaz, Plaintiff-Appellant, - -

against

Michael Powell d/b/a Daystar Tax Service, Defendant-Respondent.

Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, Bronx County (Gerald Lebovits, J.), entered on or about February 19, 2013, after trial, in favor of defendant dismissing the action.

Per Curiam.

Judgment (Gerald Lebovits, J.), entered on or about February 19, 2013, reversed, without costs, and new trial ordered.

The small claims action, seeking damages for "defective services rendered," is based on allegations that the defendant tax preparer failed to timely file plaintiff's New York State tax returns for a period of years, causing her to incur interest and penalties. Unfortunately, the relevant documents bearing on that issue, while shown to the trial court, were not marked as exhibits or introduced into evidence at trial, and thus are not included in the record on appeal. "In this posture, where the proffered [documents] bore directly on the key factual issues in the litigation and the absence of the [documents] from the record precludes effective appellant review, we are constrained to order a new trial" (Dyce v Singer, 40 Misc 3d 12, 13 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 30, 2013