Witz v B. Reitman Inc.

[*1] Witz v B. Reitman Inc. 2005 NYSlipOp 51086(U) Decided on July 8, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 8, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
2004-1352 S C

Howard Witz and Lynn Witz, Respondents,

against

B. Reitman Inc., Appellant.

Appeal by defendant from a small claims judgment of the District Court, Suffolk County (S. Hackeling, J.), entered January 29, 2004, in favor of plaintiffs in the principal sum of $1,700.

Judgment unanimously reversed without costs and matter remanded to the court below for a new trial before a different judge limited to the issue of damages.

Plaintiffs instituted this small claims action to recover the cost to repair a portion of their driveway and brick walkway which defendant allegedly improperly installed. The evidence was sufficient to establish that the work had been improperly done, thereby establishing liability. Plaintiffs introduced three itemized estimates as prima facie proof
of the cost and necessity of the repair (UDCA 1804). Two of the estimates appear to cover the cost of replacement of the entire driveway rather than the defective portion thereof. An issue to be addressed is whether plaintiff can be afforded proper relief by merely awarding damages for repairing a portion of the driveway or whether the entire driveway must be repaired. In view of the foregoing, the matter should be remanded for a new trial limited to the issue of damages including whether the entire driveway or only the defective portion need be repaired.
Decision Date: July 08, 2005