Appeal from a judgment of the District Court of Nassau County, First District (David Goodsell, J.), entered September 23, 2008. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,221.25.

ORDERED that the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $1,200; as so modified, the judgment is affirmed without costs.

In this small claims action, plaintiff seeks to recover damages sustained as a result of defendants' failure to properly perform photographic services. After a nonjury trial, the District Court found that defendants had not properly performed the contracted-for services and awarded judgment to plaintiff in the principal sum of $3,221.25. Upon
our review of the record, we find no basis to disturb the court's finding as to liability. However, the award of $3,221.25 cannot be sustained. Pursuant to the contract entered into between the parties, defendants' liability was limited to the return of the $500 retainer paid by plaintiff. Said limitation of liability clause is effective except in situations involving gross negligence (see Schietinger v Tauscher Cronacher Professional Engrs., P.C., 40 AD3d 954 [2007]). As defendants' actions cannot be said to constitute gross negligence, defendants' liability under the contract is limited to the sum of $500. In addition, plaintiff is entitled to the return of the $700 she paid to defendants for additional services which were not rendered and which were apparently not part of said contract and, thus, not subject to the limitation of liability clause.

In view of the foregoing, as substantial justice was not done between the parties according to the rules and principles of substantive law (UDCA 1804, 1807), the judgment is modified by reducing the award in favor of plaintiff to the sum of $1,200.

Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: November 13, 2009