Rks Elec. Corp. v Drago

[*1] Rks Elec. Corp. v Drago 2007 NY Slip Op 51163(U) [15 Misc 3d 144(A)] Decided on June 4, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 4, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2006-586 N C.

RKS Electrical Corp., Respondent,

against

Frances S. Drago, Appellant.

Appeal from a judgment of the District Court of Nassau County, Second District (Vito M. DeStefano, J.), entered August 6, 2004. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $558.

Judgment reversed without costs and matter remanded to the court below for a trial limited to the issue of damages on defendant's claim for a set-off against the sum awarded.

Defendant appeals from a commercial claims judgment awarding plaintiff the principal sum of $558 as the balance due on a contract for electrical work.

We are of the view that substantial justice was not sufficiently done between the parties according to the rules and principles of substantive law (see UDCA 1807-A [a]). It is true that plaintiff ultimately performed all of the work required under the parties' agreements and was properly awarded the amount due for such work. However, defendant's evidence established the existence of property damage in the form of holes left by plaintiff in a wall on the premises. Recovery for such damage would have been warranted, had defendant shown the cost to repair the holes, whether by two itemized estimates (see UDCA 1804-A), an itemized bill or invoice receipted or marked paid (id.), or expert testimony. Under the circumstances, defendant should be given the opportunity to prove her damages in this regard.

Defendant's assertions pertaining to the lack, if any, of an electrician's license are raised for the first time on this appeal and thus are unpreserved for our review (see Feeward Constr. Co. v Capolino, 181 AD2d 632 [1992]). [*2]

Accordingly, the judgment is reversed and the matter remanded for a trial limited to the issue of damages.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 4, 2007