Hassan v Velasquez

[*1] Hassan v Velasquez 2015 NY Slip Op 50910(U) Decided on June 11, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2014-750 RI C

Mohamed H. Hassan, Appellant,

against

John Velasquez, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered November 6, 2013. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this action to recover the principal sum of $7,500, alleging that, due to the negligence of defendant in the operation of his motor vehicle, plaintiff's vehicle had been damaged. After a nonjury trial, the Civil Court dismissed the complaint, finding that plaintiff had failed to make out a prima facie case and, in any event, had failed to prove damages.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]).

The evidence supported a finding that plaintiff was responsible for the accident, in that he had violated Vehicle and Traffic Law § 1129 by following defendant's vehicle too closely and by failing to have due regard for the speed of surrounding vehicles and the conditions of the road. Moreover, even if the record would support a finding that defendant was at least partially responsible for the accident, the court properly found that plaintiff had failed to prove damages. While plaintiff established that the alleged repairs had been performed, "[t]he measure of damages for injury to property resulting from negligence is the difference in the market value immediately before and immediately after the accident, or the reasonable cost of repairs necessary to restore it to its former condition, whichever is the lesser" (Parkoff v Stavsky, 109 AD3d 646, 647 [2013] [internal quotation marks omitted]). Plaintiff failed to prove either of these measures of damages.

CPLR 4533-a provides that, as long as certain technical requirements are met, a properly verified, itemized bill for services, receipted or marked paid, will be accepted as prima facie evidence of reasonable value and necessity for such services. However, this provision applies only to bills that do not exceed $2,000. Where, as here, a bill is for more than $2,000, a plaintiff cannot rely upon the bill and must present other evidence to prove that the services rendered were necessary and that the charges were reasonable (see Meyer v State, 51 AD2d 828 [1976]), but [*2]plaintiff failed to do so. In addition, plaintiff failed to offer testimony as to the value of his vehicle before and after the accident, as an alternative method of measuring damages (see Babbitt v Maraia, 157 AD2d 691 [1990]).

Accordingly, the judgment is affirmed.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: June 11, 2015