Landon v Martin

[*1] Landon v Martin 2005 NY Slip Op 50183(U) Decided on February 17, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 17, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-1050 S C

Robert Landon, Respondent,

against

Peter Martin, Appellant, -and- TODD KOKELL, Defendant.

Appeal by defendant Peter Martin from so much of a small claims judgment of the District Court, Suffolk County (S. Hackeling, J.), entered February 2, 2004, as awarded plaintiff the principal sum of $481.11 against him.

Judgment insofar as appealed from unanimously reversed without costs and matter remanded for a new trial as to defendant Martin limited to the issue of damages.

In this small claims action for breach of warranty arising out of a sale of a used boat engine, substantial justice was not done between the parties in accordance with the rules and principles of substantive law (UDCA 1804, 1807). At trial, defendant Martin admitted to giving a warranty on the engine, but claimed that this was only for work he had done on the engine's power head, not on the entire engine. However, the document of sale, signed by both defendants (defendant Kokell failed to appear at trial), states only that a 90 day warranty was given, without [*2]any limiting language whatsoever, and parol evidence cannot be accepted to limit the scope of this agreement (UCC 2-202). The court was therefore entitled to find that a warranty was given on the entire engine and that defendant Martin would be liable for a breach thereof.

With respect to the issue of damages, the bill in the sum of $481.11 for engine repairs submitted by plaintiff, that formed the basis for the portion of the judgment rendered against defendant Martin, is not receipted or marked paid, and therefore does not meet the evidentiary requirements of UDCA 1804 (see O'Connor v Anton's Auto Serv., NYLJ, Oct. 6, 2003 [App Term, 9th & 10th Jud Dists]; Megna v Spectrum [*3]
Builders, Inc., NYLJ, Nov. 18, 1999 [App Term, 9th & 10th Jud Dists]; Oakes v Uluturk, NYLJ, Dec. 4, 1997 [App Term, 9th & 10th Jud Dists]). Accordingly, a new trial is required as to defendant Martin limited to the issue of damages.
Decision Date: February 17, 2005