Mascolo v B. Reitman Blacktop Inc.

[*1] Mascolo v B. Reitman Blacktop Inc. 2005 NYSlipOp 51162(U) Decided on July 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
2004-1354 S C

Raymond Mascolo, Respondent,

against

B. Reitman Blacktop Inc., Appellant.

Appeal by defendant from a small claims judgment of the District Court, Suffolk County (S. Hackeling, J.), entered on February 9, 2004, awarding plaintiff the principal sum of $1,925.

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.

Plaintiff instituted this small claims action to recover $3,000 for damages resulting from the work performed by defendant in paving his driveway. The evidence was sufficient to establish that the work was improperly done, thereby establishing liability. A review of the evidence adduced upon the trial indicates that plaintiff introduced two estimates to replace the entire driveway and only one estimate for repairing a portion of the driveway containing obvious defects. The court below awarded plaintiff the sum of $1,925 based upon the single estimate for repairing a portion of the driveway. However, plaintiff was required to produce two itemized estimates or a paid bill (UDCA 1804), or expert testimony to establish the reasonable value of repairs. Further, 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 our opinion, a new trial is necessary limited to the issue of damages to afford plaintiff an opportunity to present evidence as to the reasonable value of repairing the defective portion of the driveway or, if necessary, the entire driveway.

We find defendant's remaining contentions to be without merit.
Decision Date: July 21, 2005