Bynoe v. S & e Customize It Auto Collision Corp.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: August 16, 2019
• Docket: 2019 NYSlipOp 51361(U)
• Status: Published

Opinion

Elvis O. Bynoe, Appellant,

against

S & E Customize It Auto Collision Corp., Respondent.

Elvis O. Bynoe, appellant pro se. Mark Whalen, Esq., for respondent (no brief filed).

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Susan Quirk, J.), entered August 21, 2017. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover the sum of $2,500 for defendant's allegedly defective painting of plaintiff's vehicle. At a nonjury trial, plaintiff testified that he had paid defendant $1,300 in cash to paint the vehicle, but that the paint applied by defendant did not match the original shade of white of the vehicle. Plaintiff submitted one estimate in the amount of $1,659 from a different body shop to repaint the vehicle. Defendant did not testify. In a judgment entered August 21, 2017, the Civil Court dismissed the action on the ground that plaintiff had submitted only one estimate and failed to proffer proof of payment made to defendant.

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" (CCA 1807; see CCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]).

Plaintiff's testimony was undisputed. However, even assuming that plaintiff established that defendant's work was defective, plaintiff bore the burden of proving the reasonable cost of repainting the vehicle, necessitated by defendant's deficient work. Since plaintiff failed to present an itemized bill or invoice receipted or marked paid, or two itemized estimates to repaint the vehicle (see CCA 1804), "the value of the nonperformance cannot be determined, as the record provides no basis to calculate the amount to be credited to plaintiff for defendant's omission" (Sim v Z.Z. Constr., 50 Misc 3d 138[A], 2016 NY Slip Op 50138[U], *1 [App Term, [*2]2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Accordingly, as the judgment provided the parties with substantial justice (see CCA 1804, 1807), the judgment is affirmed.

ALIOTTA, J.P., PESCE and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 16, 2019