Zaccaro v. Jenik Motor Service

Appellate Terms of the Supreme Court of New York

Zaccaro v. Jenik Motor Service

148 Misc. 2d 664, 567 N.Y.S.2d 572, 1990 N.Y. Misc. LEXIS 713

Appellate Terms of the Supreme Court of New York·Decided December 4, 1990·Published·Cited by 2 cases

Opinion

[665]*665OPINION OF THE COURT

Memorandum.

Judgment unanimously reversed without costs and action dismissed.

Plaintiff sued for damages arising out of defective servicing of his automobile. Although the only monetary loss alleged by plaintiff at trial was $255.84, the court awarded $700, apparently because of the distress suffered by plaintiff and his family due to malfunction of the car while it was on the road. On appeal defendant admits to the negligence of its servicing.

The award to the extent that it was for mental distress was in error. Absent a traumatic event causing fear of safety (see, Ford v Village Imports, 92 AD2d 717) or some special relationship or duty owed the plaintiff (not present in this case) he may not recover for mental suffering arising from breach of contract or its negligent performance (see, 36 NY Jur 2d, Damages, § 102). Nor may plaintiff recover property damage since he failed to present a paid bill or estimates as required by CCA 1804.

Kassoff, P. J., Williams and Santucci, JJ., concur.

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[665]*665OPINION OF THE COURT

Memorandum.

Judgment unanimously reversed without costs and action dismissed.

Plaintiff sued for damages arising out of defective servicing of his automobile. Although the only monetary loss alleged by plaintiff at trial was $255.84, the court awarded $700, apparently because of the distress suffered by plaintiff and his family due to malfunction of the car while it was on the road. On appeal defendant admits to the negligence of its servicing.

The award to the extent that it was for mental distress was in error. Absent a traumatic event causing fear of safety (see, Ford v Village Imports, 92 AD2d 717) or some special relationship or duty owed the plaintiff (not present in this case) he may not recover for mental suffering arising from breach of contract or its negligent performance (see, 36 NY Jur 2d, Damages, § 102). Nor may plaintiff recover property damage since he failed to present a paid bill or estimates as required by CCA 1804.

Kassoff, P. J., Williams and Santucci, JJ., concur.

Zaccaro v. Jenik Motor Service, 148 Misc. 2d 664, 567 N.Y.S.2d 572, 1990 N.Y. Misc. LEXIS 713 (N.Y. Ct. App. 1990).

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148 Misc. 2d 664 (Zaccaro v. Jenik Motor Service) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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