Lomenzo v Palmero

[*1] Lomenzo v Palmero 2007 NY Slip Op 52227(U) [17 Misc 3d 135(A)] Decided on October 10, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 10, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., EMERSON and LaCAVA, JJ
2006-523 D C.

Anthony Lomenzo, Respondent,

against

Jeff Palmero, d/b/a International Motor Car Repairs, Inc., Appellant. Anthony Lomenzo, Respondent, Peter Susczynski, d/b/a Exoticar Coach Works, Inc., Appellant.

Consolidated appeal from two judgments of the Justice Court of the Town of East Fishkill, Dutchess County (Thomas F. Wood, J.), entered August 29, 2005. The judgments, after a joint nonjury trial, awarded plaintiff $2,615 and $1,215 against defendants Jeff Palmero d/b/a International Motor Car Repairs, Inc. and Peter Susczynski d/b/a Exoticar Coach Works, Inc., respectively.

Judgments reversed without costs and actions dismissed.

Substantial justice was not done in accordance with the rules and principles of substantive law (UJCA 1804, 1807) in these small claims actions for alleged failure to repair a vehicle and for wrongful refusal to return the same. The court's finding of liability and damages is not supported by the record, which indicates that defendant Jeff Palmero d/b/a International Motor Car Repairs, Inc. performed a repair procedure requested by plaintiff, in good faith, after telling plaintiff that he did not believe that it would work and that a head gasket needed to be replaced. The evidence further showed that the procedure did not work and plaintiff failed to [*2]pay for agreed upon repairs and repairs that would be required to put the vehicle back into service. Additionally, the evidence indicated that plaintiff subsequently was asked to remove his vehicle but he took no steps to do so. Accordingly, the judgments appealed from should be reversed and the actions dismissed.

Rudolph, P.J., Emerson and LaCava, JJ., concur.
Decision Date: October 10, 2007