Alvarez v Hernandez

[*1] Alvarez v Hernandez 2005 NYSlipOp 50860(U) Decided on June 3, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 3, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-428 N C

Sylvia Alvarez, Appellant,

against

Jose A. Hernandez & #1 BEN'S TUNE UP SERVICE, Respondent.

Appeal by plaintiff from a small claims judgment of the District Court, Nassau County (M. Massell, J.), entered February 27, 2003, which dismissed the action after trial.

Judgment unanimously reversed without costs, plaintiff's claim reinstated, and matter remanded to the court below for the entry of judgment in favor of plaintiff following an inquest.

In this small claims action, plaintiff sought to recover the purchase price she paid defendants for an allegedly defective automobile, plus consequential damages. Defendant Jose Hernandez, the owner of defendant #1 Ben's Tune-Up Service, did not appear at the small claims trial. Although his son, Johnny Hernandez, purported to appear on his behalf, said appearance was not authorized absent a finding by the court that the defendant was unable to appear due to "age, mental or physical capacity or other disability" (UDCA 1815). Inasmuch as defendant Jose Hernandez did not appear either personally or by an authorized representative, a default judgment should have been entered against him. Similarly, notwithstanding Johnny Hernandez's status as Assistant Manager of defendant #1 Ben's Tune-Up Service, there was nothing in the record to indicate that said defendant was a corporation, and, if so, that Johnny Hernandez, as its employee, has the requisite authority to bind it at trial (UDCA 1809 [2]). Consequently, a default judgment should have been entered against said defendant as well. The matter is, therefore, remanded to the court below for an inquest.
Decision Date: June 03, 2005