Sorgho v Autozone 2962

[*1] Sorgho v Autozone 2962 2019 NY Slip Op 51540(U) Decided on September 30, 2019 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2019
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Gonzalez, Edmead, JJ.
570286/19

Jean Sorgho,

against

Autozone 2962, Defendant-Respondent.

Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, Bronx County (Brenda Rivera, J.), entered on or about February 13, 2019, after trial, in favor of defendant dismissing the action.

Per Curiam.

Judgment (Brenda Rivera, J.), entered on or about February 13, 2019, reversed, without costs, and new trial ordered.

Plaintiff instituted this small claims action based on allegations that defendant negligently installed a battery in plaintiff's vehicle resulting in damage to the electrical system. At trial, defendant's witness denied that its employee installed the battery and testified that plaintiff performed the installation. The trial presented a pure credibility contest based on conflicting testimony which, due to the court's failure to issue a written decision in conformity with CPLR 4213(b), went unaddressed below. In this posture, and given that the documentary evidence shown to the trial court was not marked as exhibits or introduced into evidence and is thus absent from the record on appeal, we are constrained to order a new trial.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: September 30, 2019