Tortorella v Arber

[*1] Tortorella v Arber 2010 NY Slip Op 50379(U) [26 Misc 3d 142(A)] Decided on March 8, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 8, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and LaCAVA, JJ
2009-580 N C.

Donna M. Tortorella, Appellant,

against

Howard B. Arber, Respondent.

Appeal from a judgment of the District Court of Nassau County, Second District (Tricia Ferrell, J.), entered October 22, 2008. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is reversed without costs and the matter is remitted to the District Court for a new trial.

In this small claims action, plaintiff, alleging that defendant did not do the work for which she had paid him, seeks to recover the sum of $4,750 she claims to have overpaid. After a nonjury trial, the District Court dismissed the action. Upon a review of the record, we find that substantial justice was not done between the parties according to the rules and principles of substantive law (UDCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]).

At trial, plaintiff, in order to establish her damages, attempted to introduce copies of checks totaling the sum of $7,625, which she alleged she had paid defendant, and asserted that of said sum defendant had failed to do $4,750 of the work for which she had paid. The court informed plaintiff that it did not need to consider those documents as defendant had stipulated that plaintiff had paid him the sum of $4,750, the amount for which plaintiff was suing defendant. The trial was thereafter limited to proof by defendant establishing that he had performed $4,750 worth of legal work for plaintiff based on his hourly rate and the amount of hours worked. What became obscured was plaintiff's claim that some or all of the work defendant demonstrated he had performed was covered by the rest of the total of $7,625 in payments plaintiff had made to defendant and that none of the work defendant established that he had performed corresponded to plaintiff's $4,750 payment to defendant. Since the District Court erred in failing to consider the proof proffered by plaintiff as to the total sum which she had paid to defendant, the judgment is reversed and the matter is remitted for a new trial.

Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: March 08, 2010