DeWall v. Owl Homes of Victor

213 A.D.2d 977, 624 N.Y.S.2d 482

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 1995
• Status: Published

Opinion

—Judgment unanimously affirmed with costs. Memorandum: Plaintiff commenced this action, alleging that she had been damaged by defendant’s faulty installation of her mobile home. Defendant appeals from a judgment in which Supreme Court, following a nonjury trial, awarded plaintiff $2,000 in damages, $700 in costs, $320 in disbursements, and $712.50 in prejudgment interest. Defendant argues that the court erred in failing to dismiss the complaint at the close of plaintiff’s proof on the ground that plaintiff failed to prove fault, causation, or damages; in finding in favor of plaintiff; in admitting speculative testimony by plaintiff’s expert; in awarding plaintiff prejudgment interest; and in awarding costs to plaintiff.

The court properly denied the motion to dismiss. Although plaintiff indicated that she was resting "at this point” following her testimony, the circumstances make clear that plaintiff intended to put on the testimony of her expert, who was late in appearing. Thus, defendant’s motion for a directed verdict was premature.

The court did not err in admitting the testimony of plaintiff’s expert. Moreover, that expert’s opinion, which was based on facts in the record or personally known to the witness as a result of his inspection of the home, was sufficient to support the verdict for plaintiff.

Plaintiff was properly awarded prejudgment interest, notwithstanding that she had not yet paid for the repairs necessitated by defendant’s negligence. Finally, the court did not err in awarding plaintiff costs. Where, as here, the plaintiff has recovered more than $500 on her complaint, CPLR 8102 (2) does not require denial of costs. (Appeal from Judgment of Supreme Court, Ontario County, Harvey, J.—Negligence.) Present—Denman, P. J., Lawton, Wesley, Balio and Boehm, JJ.