Appeal by defendant from a small claims judgment of the Justice Court, Town of Wailkill, Orange County (R. Shoemaker, J.), entered October 5, 2001, in favor of plaintiff in the principal sum of $1,400.

Judgment unanimously reversed without costs and action dismissed.

Plaintiff commenced this small claims action to recover, among other things, the expenses she incurred traveling from California to New York in an unsuccessful attempt to exercise her visitation rights with respect to her daughter who resided with defendant, her ex-husband. The court did not specify how it calculated the amount awarded to plaintiff.

However, based on the documentary evidence submitted, it appears that the amount awarded includes the cost of airline tickets for plaintiff, her boyfriend and for another child to fly to New York. Even assuming plaintiff established liability for the expenses she incurred, she failed to establish that defendant was liable for expenses incurred by her traveling companions. Moreover, there was a failure of proof as to damages inasmuch as plaintiff did not establish the cost of her airline ticket or that she paid for her airline ticket, the rental car and the phone calls to defendant. Accordingly, due to the failure of proof as to damages, the judgment does not render substantial justice between the parties according to the rules and principles of substantive law (see UJCA 1807) and the action must be dismissed.

Defendant's remaining contentions either lack merit or have been rendered academic by our decision herein.
Decision Date: December 03, 2003