Mcgrath v Dangio

[*1] McGrath v Dangio 2010 NY Slip Op 51248(U) [28 Misc 3d 130(A)] Decided on July 16, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through September 10, 2010; it will not be published in the printed Official Reports.

Decided on July 16, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and IANNACCI, JJ
2009-818 S C.

John McGrath, Appellant,

against

Cheryl Dangio, Respondent.

Appeal from a judgment of the District Court of Suffolk County, Fifth District (James P. Flanagan, J.), entered February 4, 2009. 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 the entry of judgment in favor of plaintiff in the principal sum of $500.

Plaintiff commenced this small claims action against his ex-wife, alleging that she had failed to reasonably care for his motorcycle. At the nonjury trial, plaintiff testified that, by order dated July 22, 2004, the Supreme Court (Blydenburgh, J.) had directed defendant to return plaintiff's property, including a 1981 motorcycle. It is undisputed that the Supreme Court found that the motorcycle was marital property and was worth the sum of $3,000. Plaintiff testified that on August 3, 2004, August 9, 2004 and June 2, 2005, he had attempted to pick up his motorcycle from defendant, but she had refused to allow him access to it. Two police officers testified that they had accompanied plaintiff on the aforementioned dates and that defendant had told plaintiff that she did not have access to the motorcycle because it was in the garage and was blocked by other items stored in the garage. The foregoing testimony was uncontroverted. Plaintiff further testified that when he was permitted to pick up the motorcycle on September 28, 2007, it was in poor condition and covered in rust, because defendant had stored the motorcycle in her backyard. Plaintiff's expert testified that the motorcycle was inoperable and its present value was approximately $2,500 to $2,800. Defendant initially testified that she had stored the motorcycle in her garage and then later testified that she had stored it in her backyard and kept it covered with a tarpaulin, which she had replaced over the years as it became weathered. After trial, the District Court dismissed the action.

Contrary to the court's determination, we find that plaintiff established defendant's [*2]liability by proving that defendant failed to grant him access to the motorcycle on three occasions upon which he sought to retrieve it, and that defendant had failed to reasonably care for the motorcycle. Consequently, the judgment dismissing the action did not provide the parties with substantial justice according to the rules and principles of substantive law (see UDCA 1804, 1807). However, since the Supreme Court found the motorcycle to be marital property worth $3,000, which it awarded to plaintiff, and given the fact that plaintiff's expert testified that the present value of the motorcycle was approximately $2,500 to $2,800, we conclude that plaintiff is only entitled to recover the sum of $500 from defendant.

In light of the foregoing, the judgment is reversed and the matter is remitted to the District Court for the entry of judgment in favor of plaintiff in the principal sum of $500.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.
Decision Date: July 16, 2010