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Petito v Garden City Jeep Chrysler Dodge, LLC
2015 NY Slip Op 50226(U) [46 Misc 3d 147(A)]
Decided on February 24, 2015
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on February 24, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : MARANO, P.J., IANNACCI and TOLBERT, JJ.
2013-2048 N C

Anthony Petito, Respondent,

against

Garden City Jeep Chrysler Dodge, LLC, Appellant.


Appeal from a judgment of the District Court of Nassau County, First District (Eric Bjorneby, J.), entered January 11, 2013. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,725.

ORDERED that the judgment is modified by reducing the award to plaintiff to the principal sum of $2,650; as so modified, the judgment is affirmed, without costs.

In this small claims action, plaintiff seeks to recover the sum of $2,800 for damage to his driveway caused by defendant. After a nonjury trial, the District Court awarded plaintiff the principal sum of $2,725, representing the averaged cost of repair based on two estimates submitted into evidence by plaintiff.

Pursuant to UDCA 1804, plaintiff submitted one estimate from each of two contractors, in the amounts of $2,800 and $2,650, respectively, to establish the reasonable cost and necessity of repairing his entire driveway. Defendant failed to establish that a lesser measure of damages than the cost of the itemized repairs, as established by these estimates, would sufficiently compensate plaintiff for his loss (see Jenkins v Etlinger, 55 NY2d 35, 39 [1982]; Barron v Dube, 48 AD3d 1059 [2008]). However, substantial justice (UDCA 1807) requires that the award in favor of plaintiff should properly have been limited to the amount of the lower estimate. Accordingly, the judgment is modified by reducing the amount awarded to plaintiff to the principal sum of $2,650.

Marano, P.J., Iannacci and Tolbert, JJ., concur.


Decision Date: February 24, 2015