Solomonic v Villanueva

[*1] Solomonic v Villanueva 2005 NYSlipOp 51026(U) Decided on June 27, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: June 27, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, P.J., McCABE and COVELLO, JJ.
2004-80 N C

Richard Solomonic, RICH SOLOMONIC CARPENTRY, Respondent,

against

Alfredo Villanueva, Appellant.

Appeal by defendant from a small claims judgment of the District Court, Nassau County (H. Miller, J.), entered October 24, 2002, which awarded plaintiff the principal sum of $1,198 and dismissed defendant's counterclaim.

Judgment unanimously modified by vacating the award in favor of plaintiff, by severing plaintiff's cause of action and remanding the matter for an assessment of damages with respect thereto; as so modified, affirmed without costs.

Plaintiff, a home improvement contractor, commenced this small claims action to recover the sum of $3,000 for services rendered. Defendant counterclaimed and alleged that plaintiff damaged his hardwood floors. Upon a review of the record, we find that the lower court's resolution of issues of credibility in finding for plaintiff on the issue of liability with respect to his breach of contract cause of action and in dismissing defendant's counterclaim, rendered substantial justice between the parties (UDCA 1807). However, the court below failed to make specific findings of fact and, thus, it is unclear how the court arrived at the award of $1,198 in favor of plaintiff.

Accordingly, substantial justice requires that plaintiff's cause of action be remanded for a new trial limited to an assessment of damages with respect thereto. We note that we leave undisturbed the dismissal of defendant's counterclaim.
Decision Date: June 27, 2005