Sapir v Independent Mercedes Benz of Five Towns Co., Inc. (2013 NY Slip Op 51389(U))

Sapir v Independent Mercedes Benz of Five Towns Co., Inc.

2013 NY Slip Op 51389(U) [40 Misc 3d 137(A)]

Decided on August 8, 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This opinion is uncorrected and will not be published in the printed Official Reports.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

Moshe Sapir, Appellant, —

against

Independent Mercedes Benz of Five Towns Co., Inc., Respondent.

Appeal from a judgment of the District Court of Nassau County, Second District (Eugene H. Shifrin, Ct. Atty. Ref.), entered September 26, 2011. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is reversed, without costs, and the action is remitted to the District Court for a new trial before a judge or different court attorney referee.

At a nonjury trial in this small claims action to recover the sum of $217.25, the testimony established that plaintiff had brought his car to defendant for repairs, but that, after defendant's owner had telephoned plaintiff to advise plaintiff that the repairs would [*2]
cost more than he had stated in his original written estimate, plaintiff had decided to have the car repaired elsewhere. Plaintiff testified that defendant had insisted on plaintiff's payment to him of the sum of $217.25 as a condition of defendant's release of the car to plaintiff, which sum plaintiff had paid. Defendant's owner testified that the $217.25 charge included a $95 charge for labor, as well as a 20% charge for parts that defendant had specially ordered on behalf of plaintiff and which plaintiff had declined to accept.

Defendant never specified the basis for its alleged entitlement to 20% of the cost of parts it had specially ordered for plaintiff. Even if it be assumed that defendant was entitled to be paid 20% of the cost of such parts, it cannot be determined from the record what parts defendant specially ordered on behalf of plaintiff and the price of each part, or the basis for defendant's $95 charge for labor. However, we note that the court attorney referee refused to accept into evidence a number of documents which were offered by both parties, and that the parties were not afforded the opportunity to complete the presentation of their cases. In these circumstances, we conclude that the judgment dismissing the action failed to render substantial justice between the parties according to the rules and principles of substantive law (UDCA 1804, 1807), and that a new trial is required.

Accordingly, the judgment is reversed and the action is remitted to the District Court for a new trial before a judge or different court attorney referee.