Miller v Two Guy's Home Improvement, Inc.

[*1] Miller v Two Guy's Home Improvement, Inc. 2010 NY Slip Op 50830(U) [27 Misc 3d 136(A)] Decided on May 10, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 10, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and IANNACCI, JJ
2009-783 S C.

Harry J. Miller, III, Respondent,

against

Two Guy's Home Improvement, Inc., Defendant, -and- EDWARD CABALLERO, Appellant.

Appeal from a judgment of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered December 12, 2008. The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of $5,000 as against defendant Edward Caballero.

ORDERED that the judgment, insofar as appealed from, is modified by providing that the award in favor of plaintiff as against defendant Edward Caballero is reduced to
the principal sum of $1,490; as so modified, the judgment, insofar as appealed from, is affirmed without costs.

In this small claims action, plaintiff seeks to recover the sum of $5,000 as the cost to repair a deck which had allegedly been defectively built by defendants. After a nonjury trial, the District Court awarded plaintiff the principal sum of $5,000 as against defendant Edward Caballero and dismissed the action as against defendant Two Guy's Home Improvement, Inc. [*2]Defendant Caballero appeals from so much of the judgment as awarded plaintiff the principal sum of $5,000 as against him.

Upon a review of the record, we find that although the District Court had sufficient evidence to find defendant Edward Caballero liable for the defective construction of plaintiff's deck, the court erred in awarding plaintiff the principal sum of $5,000 in damages. Plaintiff failed to produce two itemized estimates or an itemized paid bill or invoice for the repair of the deck, totaling $5,000. Rather, plaintiff produced proof that he had paid $1,200 to another contractor to repair the deck (see UDCA 1804) plus the sum of $290 for a construction permit. Consequently, in order to render substantial justice between the parties according to the rules and principles of substantive law (see UDCA 1807), the judgment, insofar as appealed from, is modified by reducing the amount awarded to plaintiff as against defendant Edward Caballero to the principal sum of $1,490.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.
Decision Date: May 10, 2010