Waidenbaum v Gugliucci (2013 NY Slip Op 51116(U))

Waidenbaum v Gugliucci

2013 NY Slip Op 51116(U) [40 Misc 3d 130(A)]

Decided on July 3, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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

Sam Waidenbaum and SUSAN WAIDENBAUM, Appellants, —

against

Rick Gugliucci, Defendant, -and- AUTHENTIC MOULDINGS & MILLWORK, LLC, Respondent.

Appeal, on the ground of inadequacy, from a judgment of the District Court of Nassau County, Second District (Eugene H. Shifrin, Ct. Atty. Ref.), entered October 6, 2011. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, awarded plaintiffs the principal sum of $1,650 as against defendant Authentic Mouldings & Millwork, LLC.

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and the matter is remitted to the District Court for a new trial, before a judge or different court attorney referee, of so much of the action as is against defendant Authentic Mouldings & Millwork, LLC. [*2]

In this small claims action, plaintiffs seek $4,400, alleging, in essence, that they paid defendants to create custom countertops, specifically designed to cover plaintiffs' heating and air conditioning units and to allow those units to work properly, and that the countertops created by defendants failed to meet those specifications. After a nonjury trial, the action was dismissed as against the individual defendant, Rick Gugliucci, and plaintiffs were awarded the principal sum of $1,650 as against defendant Authentic Mouldings & Millwork, LLC (Authentic). As limited by their brief, plaintiffs appeal, on the ground of inadequacy, from so much of the judgment as awarded them only $1,650 as against defendant Authentic.

Upon a review of the record, we find that substantial justice has not been done between the parties according to the rules and principles of substantive law (see UDCA 1807). As plaintiffs argue on appeal, they were cut off during trial and not allowed to present their evidence either as to what the work was intended to comprise or as to the deficiencies of that work. Thus, a new trial is required as against defendant Authentic.

Accordingly, the judgment, insofar as appealed from, is reversed, and the matter is remitted to the District Court for a new trial, before a judge or different court attorney referee, of so much of the action as is against defendant Authentic.