Okun v Prime Time Transp.

[*1] Okun v Prime Time Transp. 2003 NY Slip Op 51666(U) Decided on December 19, 2003 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the Official Reports.

Decided on December 19, 2003
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., ARON1N and PATTERSON, JJ.
NO. 2001-1650 Q C

JANUSZ OKUN, Respondent, -

against

PRIME TIME TRANSPORTATION, Appellant.

Appeal by defendant from a small claims judgment of the Civil Court, Queens County (D. Hart, J.), entered on November 16, 2001, awarding plaintiff the principal sum of $2,400 plus interest.

Judgment reversed without costs and matter remanded to the court below for a new trial.

Upon a review of the record, we find that substantial justice was not done between the parties (see CCA 1804, 1807). The court below, in conducting most of the examinations of the witnesses, and in preventing defense counsel from effectively questioning either plaintiff or the defense witnesses, demonstrated a lack of impartiality in the proceedings before it. Under the circumstances, a new trial is warranted.

Pesce, P.J., and Aronin, J., concur.

Patterson, J., concurs in part and dissents in part in a separate memorandum.

Patterson, J., concurs in part and dissents in part in the following memorandum:

While I concur with my colleagues insofar as agreeing that the court's interference in the proceedings below was excessive, I disagree that a new trial is warranted.

Plaintiff was a franchisee of defendant franchisor, which operated a two-way radiodispatched ground transportation service. He was found, by a committee of his co-franchisees, to have violated a rule which prohibited overcharging a customer, and was fined in accordance with rules promulgated by his co-franchisees. The fine was paid to the Prime Time Sunshine Fund, an entity which existed solely for the benefit of the franchisees, and whose officers were members of the committee. Plaintiff brought the instant breach of contract action to object to the fine imposed against him.

There was no evidence adduced at trial that defendant was involved in the affairs of Prime Time Sunshine Fund or in the system set up by the franchisees. Nor was there any evidence that defendant failed to fulfill any of its obligations to plaintiff under the franchise [*2]agreement or breached any of the provisions of that agreement. Inasmuch as plaintiff did not bring this action against the proper party, the Prime Time Sunshine Fund, and since he presented insufficient evidence to support his claim of breach of contract against defendant, it is my opinion that the judgment should be reversed and the action dismissed.
Decision Date: December 19, 2003