Fantastic Fabrics & Promotions, Inc. v Silverman (2013 NY Slip Op 51268(U))

Fantastic Fabrics & Promotions, Inc. v Silverman

2013 NY Slip Op 51268(U) [40 Misc 3d 134(A)]

Decided on July 12, 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This opinion is uncorrected and will not be published in the printed Official Reports.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

Fantastic Fabrics & Promotions, Inc., Respondent, —

against

Josh Silverman, Appellant.

Appeal from a judgment of the District Court of Nassau County, Second District (Eugene H. Shifrin, Ct. Atty. Ref.), entered May 13, 2011. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, awarded plaintiff the principal sum of $900.

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, limited to the issue of the damages to be awarded plaintiff on its cause of action. [*2]

Insofar as is relevant to this appeal, plaintiff commenced this commercial claims action to recover the principal sum of $1,133.28, representing the balance defendant allegedly owed plaintiff for shirts which plaintiff had manufactured for defendant pursuant to an oral agreement. After a nonjury trial, the District Court awarded plaintiff the principal sum of $900.

Although the record supports the District Court's finding of defendant's liability, the award to plaintiff of damages in the principal sum of $900 cannot be sustained, as it is unclear how the District Court calculated this sum. Plaintiff's six invoices show a total contract price of $3,133.28. It is undisputed that plaintiff had been paid $2,000. Consequently, plaintiff seeks to recover the balance allegedly owed of $1,133.28. While both parties indicated that a portion of the shirts had been returned, there was no finding as to whether the invoices had already taken such returns into account or the price of any such returns if the invoices had not taken them into account. In any event, it is impossible for this court to determine how the District Court's award of $900 in favor of plaintiff was calculated and, thus, whether it should be sustained.

Accordingly, as the judgment, insofar as appealed from, did not provide the parties with substantial justice according to the rules and principles of substantive law with respect to the amount of damages awarded plaintiff on its cause of action (UDCA 1804-A, 1807-A; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]), 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, limited to the issue of the damages to be awarded plaintiff on its cause of action.