Hazzard v Lennon (2012 NY Slip Op 51956(U))

Hazzard v Lennon

2012 NY Slip Op 51956(U) [37 Misc 3d 129(A)]

Decided on October 16, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Kathleen Hazzard, Respondent, —

against

Thomas D. Lennon, Appellant.

Appeal from a judgment of the Justice Court of the Village of Ossining, Westchester County (William J. Hamilton, J.), entered January 19, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,000.

ORDERED that the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $2,206.82; as so modified, the judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover the sum of $3,000 as reimbursement for expenses she had incurred on defendant's behalf. At a nonjury trial, plaintiff testified that defendant is her brother and that, from September 9, 2008 through March 19, 2009, she had physical custody of her brother's minor daughter. She stated that, during that time, she had incurred various expenses in caring for her niece. Plaintiff indicated that while defendant had paid her a total of $1,100 to cover some of his daughter's costs, the unreimbursed out-of-pocket expenses she had incurred on behalf of her niece amounted to $1,142.82. In addition, plaintiff asserted that while defendant's daughter had been in her custody, she had driven 40 miles a day on school days, transporting her niece to and from school. Plaintiff sought reimbursement of her transportation expenses at the rate of $.55 per mile. Defendant testified that he had never agreed to pay for his daughter's expenses. Following the trial, the Justice Court awarded plaintiff the principal sum of $3,000.

Plaintiff bore the burden of demonstrating the amount and propriety of her expenditures (see Matter of Naumoff, 301 AD2d 802, 804 [2003]) as well as her right to be reimbursed by defendant for her expenditures. Upon a review of the record, we find that plaintiff established her right to reimbursement of $1,142.82, but that she was entitled, at most, to a mileage reimbursement of $1,064, and that, to the extent the judgment exceeded $2,206.82, it failed to render substantial justice between the parties according to the rules and principles of substantive law (see UJCA 1804, 1807).

Accordingly, the judgment is modified by reducing the amount awarded plaintiff to the principal sum of $2,206.82.