Rimi v Jacaruso

[*1] Rimi v Jacaruso 2010 NY Slip Op 50697(U) [27 Misc 3d 132(A)] Decided on April 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., LaCAVA and IANNACCI, JJ
2009-138 N C.

Louis Rimi and DEBRA RIMI, Appellants,

against

Joseph Jacaruso, Respondent.

Appeal from a judgment of the District Court of Nassau County, First District (Andrew M. Engel, J.), entered November 18, 2008. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is modified by providing that the dismissal of the complaint is without prejudice; as so modified, the judgment is affirmed without costs.

Plaintiffs purchased a house from defendant in February 2006. Pursuant to a rider to the contract of sale, defendant agreed to provide gas service to the house. By a separate written agreement, defendant agreed, in May 2006, to pay plaintiffs "all costs incurred for the work to be done to have the gas line installed and completed" if the installation was not completed by the end of January 2007. In June 2007, plaintiffs commenced the instant action to recover the principal sum of $15,000, representing the estimated cost to install a gas line. Following a nonjury trial at which defendant did not appear, the District Court dismissed the complaint, finding that plaintiffs had failed to prove damages. This appeal by plaintiffs ensued.

Because plaintiffs failed to present any competent evidence at trial regarding the costs incurred for the work, the District Court correctly determined that plaintiffs had failed to prove damages and dismissed the complaint. However, under all the facts presented herein, it is our view that the dismissal of the complaint should be without prejudice, and we modify the judgment accordingly. Plaintiffs may, if they be so advised, commence a new action in which they may present competent evidence of the costs incurred for the installation of a gas line (see e.g. Calderoni v Taddonio, 105 NYS2d 38 [App Term, 1st Dept 1951]).

Molia, J.P., LaCava and Iannacci, JJ., concur. [*2]
Decision Date: April 13, 2010