Pasternack v Epoxy Tech Flooring Installations

[*1] Pasternack v Epoxy Tech Flooring Installations 2008 NY Slip Op 50523(U) [19 Misc 3d 129(A)] Decided on March 10, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 10, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: McCABE, J.P., TANENBAUM and MOLIA, JJ
2007-268 S C.

Steven Pasternack and Kathy Pasternack, Respondents,

against

Epoxy Tech Flooring Installations and Frank DiBenedetto, Defendants, -and- Epoxy Tech, Inc., Appellant.

Appeal from a judgment of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered August 15, 2006. The judgment, after a nonjury trial, awarded plaintiffs the principal sum of $6,130 as against defendant Epoxy Tech, Inc.

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

The instant action was brought by plaintiffs to recover damages for the alleged defective installation of kitchen flooring. Plaintiffs sought reimbursement of the amount paid for installation of the flooring, as well as for the cost of removing and replacing the flooring. After a nonjury trial, the court found defendant Epoxy Tech, Inc. liable for the defective installation and awarded plaintiff the principal sum of $6,130.

The determination of the trial court after a nonjury trial should not be disturbed on appeal unless it is clear that the court's conclusions could not have been reached upon a fair interpretation of the evidence, especially where the findings of fact rest in large measure on considerations relating to the credibility of witnesses (see Bercow v Damus, 5 AD3d 711 [2004]). In the instant case, the trial court's findings of fact and conclusions of law as to liability were based upon credibility determinations which were not inconsistent with a fair interpretation of the evidence. There is, accordingly, no basis to disturb the lower court's determination of [*2]liability.

With respect to the issue of damages, however, the court below erred in its determination of what was required of plaintiffs as proof of damages. After plaintiffs' expert witness testified regarding the estimated cost of replacing the kitchen flooring, the court specifically stated that it did not find his testimony credible. The court adjourned the trial in order for plaintiffs to procure more credible expert testimony, and stated that it would not accept itemized written estimates. On the adjourned date, however, plaintiffs did not produce an expert, and the court accepted two itemized written estimates as proof of the cost to repair the flooring. While in the Small Claims Part of the court, two itemized estimates "are admissible in evidence and are prima facie evidence of the reasonable value and necessity of such services or repairs" (UDCA 1804), the same rules of evidence are not applicable in the instant case, brought in the regular part of the District Court. Accordingly, the matter is remanded to the court below for a new trial limited to the issue of damages, where plaintiffs may prove their damages by means of independent expert testimony, subject to cross-examination by defendant.

McCabe, J.P., Tanenbaum and Molia, JJ., concur.
Decision Date: March 10, 2008