Thomas v Taryag Realty

[*1] Thomas v Taryag Realty 2005 NY Slip Op 52119(U) [10 Misc 3d 135(A)] Decided on December 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ.
2005-4 K C

Ilene Thomas, Appellant,

against

Taryag Realty, Respondent, -and- Ronald W. Pazant, Marshal, City of New York, Defendant. Taryag Realty, Third-Party Plaintiff REO Allegiance, Third-Party Defendant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered on June 29, 2004. The judgment, insofar as appealed from on the ground of inadequacy, awarded plaintiff, after a nonjury trial, the sum of $3,315.00 as against defendant Taryag Realty.

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

A review of the record on appeal indicates that the trial court's determination that plaintiff was entitled to recover damages was based upon, inter alia, documentary materials, including receipts and photographs, which were presented by plaintiff but improperly never admitted into evidence and not made part of the record. Under the circumstances, appellate review of the adequacy of the award is precluded and the matter must be remanded to the court below for a [*2]new trial limited to the issue of damages.
Decision Date: December 13, 2005