Robottom v Cascone

[*1] Robottom v Cascone 2010 NY Slip Op 50266(U) [26 Misc 3d 140(A)] Decided on February 19, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 19, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and IANNACCI, JJ
2009-382 S C.

Edward Robottom, Respondent,

against

Michaele Cascone, Appellant.

Appeal from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered November 26, 2008. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,752.

ORDERED that the judgment is affirmed without costs.

Plaintiff commenced the instant small claims action to recover, among other things, unpaid rent and the cost of cleaning an apartment which he had leased to defendant. After a nonjury trial, the District Court awarded plaintiff the principal sum of $1,752, and defendant appeals.

A review of the record on appeal indicates that the District Court erred in including in the $1,752 award to plaintiff the sum of $350, representing the cost of a dumpster, as plaintiff did not utilize a dumpster. However, in calculating plaintiff's award, the District Court credited defendant the same $360 abatement twice, for a $445.53 LIPA bill. Accordingly, the proof at trial established that plaintiff was entitled to an award in the total principal sum of $1,762.53. However, in rendering substantial justice between the parties according to the rules and principles of substantive law (UDCA 1804, 1807), we are limited to affirming the judgment in the sum of $1,752, as plaintiff did not cross-appeal from the judgment and is therefore not entitled to affirmative relief (see Hecht v City of New York, 60 NY2d 57 [1983]).

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: February 19, 2010