Gal v Delgiorno

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[*1] Gal v Delgiorno 2016 NY Slip Op 50046(U) Decided on January 8, 2016 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 8, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., TOLBERT and GARGUILO, JJ.
2014-2070 N C

Arie Gal Doing Business as STAR EXEMPTION ADVISOR, Appellant,

against

Stefanie Leigh Delgiorno, Respondent.

Appeal from a judgment of the District Court of Nassau County, Fourth District (Michael A. Ciaffa, J.), entered May 7, 2014. 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 a judgment in favor of plaintiff in the principal sum of $1,612.15.

In this small claims action, plaintiff seeks to recover for breach of a contract pursuant to which plaintiff rendered services to obtain, and succeeded in obtaining, a


school tax relief (STAR) exemption (see RPTL 425) for defendant. Following a nonjury trial, the District Court dismissed the action.

In a small claims action, our review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UDCA 1807; see UDCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]).

The uncontested evidence showed that the parties had entered into a contract pursuant to which plaintiff was to provide defendant with an application form for a STAR school tax exemption for the 2013/14 tax year, and, after verifying that the form had been correctly completed, to submit the form together with supporting documentation to the Nassau County Department of Assessment and, if not approved, to file an appeal. Under the terms of the contract, defendant's obligation to pay plaintiff was contingent upon the application being granted; in such instance, plaintiff's fee was to equal defendant's STAR tax exemption savings for the first year of her tax exemption. Plaintiff filed defendant's application, and the Nassau County Department of Assessment granted a STAR tax exemption to defendant based on that application. Defendant's STAR tax exemption savings for the first year in which the exemption was granted were $1,612.15. Consequently, plaintiff established, prima facie, his right to judgment against defendant in the sum of $1,612.15 (see Gal v Powell, 47 Misc 3d 141[A], 2015 NY Slip Op 50616[U] [App Term, 9th & 10th Jud Dists 2015]).

The evidence indicated that, after plaintiff filed the application and before it was granted, the Nassau County Department of Assessment had contacted both plaintiff and defendant and had requested a copy of defendant's marriage certificate. Defendant provided plaintiff with a copy of the marriage certificate, which plaintiff filed on defendant's behalf. Although defendant independently faxed a copy of the certificate to Nassau County, she did not, by her redundant [*2]action, nullify the work plaintiff had performed under the parties' contract or otherwise establish a defense to plaintiff's cause of action for breach of contract.

We therefore conclude that the judgment dismissing the action failed to render substantial justice between the parties according to the rules and principles of substantive law (see UDCA 1804, 1807).

We reach no other issue.

Accordingly, the judgment is reversed and the matter is remitted to the District Court for the entry of a judgment in favor of plaintiff in the principal sum of $1,612.15.

Iannacci, J.P., Tolbert and Garguilo, JJ., concur.


Decision Date: January 08, 2016