Rubano v Keyspan

[*1] Rubano v Keyspan 2008 NY Slip Op 51270(U) [20 Misc 3d 127(A)] Decided on April 3, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 3, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2007-526 Q C.

Nina Rubano, Appellant,

against

Keyspan, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered August 10, 2006. The judgment, after a nonjury trial, dismissed plaintiff's action.

Judgment affirmed without costs.

Plaintiff commenced the instant small claims action to recover damages as a result of defendant's allegedly improper turning off of her gas utility service. We find that the court below conducted the trial in a fair and impartial manner, and a review of the record on appeal supports the lower court's determination that plaintiff failed to establish a prima facie case. Accordingly, substantial justice has been done between the parties in conformity with the rules and principles of substantive law and the judgment of the lower court is affirmed (CCA 1804, 1807).

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to reverse the judgment, grant judgment to plaintiff on the issue of liability, and remand the matter to the court below for an assessment of damages in the following memorandum:

Contrary to my colleagues, I find that the lower court did not fulfill its requirement to do "substantial justice" between the parties (CCA 1807).

The record establishes that there was a long history between the parties and that defendant [*2]Keyspan had given prior notice to plaintiff Nina Rubano, the owner, whenever the gas service to one of the tenants in her premises was going to be terminated. In addition, on each of those occasions over a period of 11 years, Ms. Rubano agreed to accept responsibility for the cost of service in order to have the gas service continue. It was only because, unlike in the past, defendant Keyspan in this instance failed to give notice that the gas was going to be turned off, that the building's pipes froze and damage was caused.

Accordingly, I find that substantial justice requires a finding of liability as against Keyspan, and the matter should be remanded to the Small Claims Part of the court for a determination of damages, if any.
Decision Date: April 3, 2008