Plaintiff commenced this action on August 31, 2023 by summons and endorsed complaint seeking $12,000 for "failure to provide proper services." Defendant answered the complaint denying the allegations and asserted counterclaims for unpaid services in the amount of $939.45 and attorneys' fees.

A bench trial was held before the undersigned on May 3, 2024 in Room 775, at which time plaintiff appeared unrepresented and testified on his behalf. Defendant appeared by counsel and three witnesses testified on its behalf: defendant's President Frank Navetta, Field Service Supervisor Timothy Groening, and Field Technician Andre LeGette.

The parties submitted the following exhibits to the Court, which were all admitted into evidence at the time of the trial:

Plaintiff exhibit 1, generator set preventative maintenance agreement

Plaintiff exhibit 2, bookkeeping record from computer system

Plaintiff exhibit 3, job ticket for work on 4/4/23

Plaintiff exhibit 4, house caretaker affidavit

Plaintiff exhibit 5, discovery demand and response

Plaintiff exhibit 6, defendant's estimate dated 4/14/23

Plaintiff exhibit 7, Commander Power Systems print-out with dispatch notes

Plaintiff exhibit 8, Commander Power Systems invoice 29155

Plaintiff exhibit 9, Commander Power Systems invoice 30369

Plaintiff exhibit 10, Commander Power Systems invoice 29614 — new transfer switch

Plaintiff exhibit 11, physical evidence - wrench

Defendant exhibit A, Power Pro invoice 76225

Defendant exhibit B, Timothy Groening Generac Industrial certificate of completion

Defendant exhibit C, Generac Owner's Manual

Defendant exhibit D, generator set preventative maintenance agreement dated 3/15/21

However, the Court, upon further consideration (see NY Guide to Evid 1.13 [a] ["Absent undue prejudice to a party, a judge may revisit his or her own evidentiary rulings during trial"]), the Court excludes plaintiff's exhibit 4 from evidence on the grounds that (1) Uniform Rule 202.20-i applies to the Supreme Court and there does not appear to be a similar rule for the New York City Civil Court in Part 208; and (2) as defense counsel argued at the time of trial, defendant was unable to cross-examine the affiant as he did not appear at the trial to provide live testimony. The Court finds that plaintiff would not be unduly prejudiced by its exclusion as most of the allegations were part of plaintiff's testimony and evidence, and the statements are otherwise without probative value as nothing in the record suggests the affiant witnessed the technician working on the transfer switch.

Plaintiff claims that during an annual maintenance visit, an unlicensed technician employed by defendant negligently broke the transfer switch of his commercial generator. More specifically, plaintiff claims the technician used a wrench to forcefully unfreeze the transfer switch. Plaintiff retained another company to install a new transfer switch and seeks reimbursement from defendant.

Defendant contends that there is no evidence the transfer switch was working properly prior to the annual preventative maintenance visit; that the technician has proper training, experience and certification; and the technician followed proper procedures to attempt to fix the transfer switch and did not break the transfer switch

Plaintiff credibly testified that he is the owner of a Generac commercial generator installed in 2009 in plaintiff's home in Quogue, New York. It is undisputed that the parties entered into a Generator Set Preventative Maintenance Agreement in 2021, whereby defendant would provide "PM-1" and "PM-2" servicing on plaintiff's generator once per year (ex 1; ex D).

One of defendant's technicians, Andre LeGette, came to plaintiff's home for annual servicing of the generator on April 4, 2023.

LeGette credibly testified that when he arrived, the groundskeeper unlocked the door for him and he began the servicing. He noticed the generator was in default (tr at 78; see also tr at 50 [Groening testified that the generator was not functioning due to the fuel regulator]). Then LeGette "[c]hecked the oil, checked the spark plugs changed the spark plugs, change the air filter and check the coolant and make sure the generator [ran]" (tr at 78). The generator ran after being reset and then he went to the basement to perform a transfer test, which is to ensure that the generator can power the house. Once that is done, the generator has to be switched back to utility (tr at 78-79). Upon transferring the power back to utility, the transfer switch failed.

Q: How did you know the transfer switch failed?

A: I heard the motor in the transfer switch humming and humming and humming. So I stopped. Shut the power down. Shut the power down in generator. Opened up the cabinet. That is where I saw the coil stuck in neutral.

Q: Where was it supposed to be?

A: It was supposed to transfer back to utility.

Q: What did you do at that time?

A: I went back outside and called TJ, Timothy, what was going on with the transfer switch. He sent me a file.

Q: What did Timothy tell you?

A: He asked me what happened with the generator transfer switch. I told him that the transfer switch had failed to return back to utility, and there is a procedure to evaluate, put the generator.

Q: Walk me through that procedure.

A: That procedure shut all, make sure the power is shut off. So you shut the generator off. Make sure the power utilities is off. You take the handle that is inside the transfer switch and the screwdriver. You set the screwdriver inside the selective switch, hold in the selective switch and you manually wrap the transfer switch, it goes to the utility.

Q: The handle you are talking about, could that be described as a wrench?

A: Yes.

Q: Did you break the wrench?

A: No.

Q: Did you break the transfer switch?

A: No.

Q: How do you know that you didn't break it?

A: You don't know that. You don't break it until you do the test. Once the, once we did the test, that is when we found out the motor inside the transfer switch failed.

Q: And nothing you had done prior to that could have caused it to fail?

A: Absolutely not.

LeGette credibly testified that he had to use some strength to manually put the switch back into utility (tr at 82). Upon examination of the wrench (ex 11), LeGette testified that the top part of the wrench appeared bent and that these wrenches are subject to being bent because it is a soft metal and "[s]o if that coil is struck, you do have to use force, and this handle will bend" (tr at 84:24-25). He has, in fact, bent such wrenches before (tr at 85).

Groening credibly testified that he had a few calls with LeGette during the servicing, consistent with LeGette's testimony. Groening also credibly testified that one would have to do a manual transfer in the event of a problem, like the one LeGette encountered at plaintiff's home, and to do the transfer in the same manner as shown in the Generac manual (tr at 54-55).

Groening also credibly testified by their indications the contact assembly failed and that may have been caused by many different things, "[l]ikely from sitting not being used tested," and there is no way a technician could have damaged the contactor assembly in the course of doing the servicing (tr at 51, 63-64).

After the servicing was completed, the resultant job ticket recapped the services as follows:

Performed PM1 & 2 service. Replaced battery due to age and crank voltage. Found fuel solenoid cracked. Solenoid are showing signs of rust along with fuel regulator, recommend replacing. During transfer test ATS transferred to emergency but did not [*2]transfer back to utility when test was over. ATS switch mechanism failed in-between emergency and utility. Manually put back in utility. Further diagnosis is required. Office will contact.

Approximately 10 days after the service visit, defendant sent plaintiff an estimate stating that "[u]pon inspection, our technician found the Automatic Transfer Switch requiring a new contactor assembly, transformer and relay" and quoted $11,401.71 to fix the switch to "ensure optimal functionality and reliability in the event of a utility outage" (ex 6).

Plaintiff ultimately contacted another service company, Commander, who sent its field technician to do a consultation on July 12, 2023. The notes from that visit state that a test was done and the technician "tried to manually transfer ats but the whole mechanism is frozen found that the bypass handle was bent and key way was stripped so could not transfer"; the technician also wrote "We need to give a price for a new contact assembly with actuator or a new transfer switch be cause [sic] the contactor is going to be expensive" (ex 7).

LeGette testified that the Commander statement is an accurate report of what happened (tr at 99).

The parties dispute whether the transfer switch was working properly prior to the annual maintenance visit. Plaintiff testified that he believed the generator was properly functioning because the generator runs an automatic test every week for approximately 10-15 minutes, and that test triggers the transfer switch (tr at 23).

Groening testified that the transfer switch is not utilized during the generator's weekly automatic test and the only way to know if the transfer switch was not properly working is by "testing it when we do our normal test or when a customer loses power" (tr at 49). As the party with specialized industry knowledge, and plaintiff's acknowledgment that he is not trained in this field (see tr at 23), the Court finds that there is no credible proof that the transfer switch was properly working prior to the service visit.

Similarly, the Court finds that the fact that the wrench was bent (ex 11; ex 7 [Commander tech notes]) is not proof, in and of itself, that the force to bend the wrench caused the transfer switch to fail. The Commander tech's notes, which plaintiff submits to the Court shows evidence of defendant's negligence, is not inconsistent with the defendant's testimony and proof that the transfer switch did not, and could not have, failed due to use of force with manually transferring back to utility with the wrench.

LeGette credibly testified that he has been working as a field technician for 12 years: the last two years with defendant and for another company, Ultimate Power Solution, for 10 years before that. His responsibilities were the same then as they are now, as he was engaged in "[f]ield work, maintenance work, take the diagnostics, installation, repairs" (tr at 86). He has experience with all types of generators, both smaller ones and large commercial ones (tr at 86-87). He credibly testified that he was licensed in Generac residential and industrial generators, as well as Cummings residential and industrial (tr at 88). His trainings were not taken with Generac or its platform but were provided in-house in the course of his employment with defendant by Tim Groening, who was trained directly by Generac (tr at 88-89, 92; see ex 5, certificate of training completion).

LeGette credibly testified that all technicians employed with PowerPro can work on industrial generators (tr at 91) and that neither the owner's manual, nor any specific instruction [*3]from Generac exists that mandates a technician working on Generac equipment be "license[d]" or "approved by Generac" (tr at 92). Indeed, the generator's owner's manual states that the unit should be serviced by "competent, qualified personnel" but does not mention any specific licensing (see ex C).

Plaintiff claims that the LeGette was an "unauthorized, unqualified mechanic" "with no license to do the work" and that he broke the equipment (tr at 3; see tr at 22 [plaintiff testified that the "unit was working properly at all times until this mechanic came in, an unqualified mechanic"]).

Having weighed the credibility of the witnesses, this court credits LeGette's and defendant's representatives' testimony and evidence (e.g., the Generac manual and the training certificates) over plaintiff's testimony, who is not an expert and presented no evidence as to what qualifications were necessary to service the generator, and finds that LeGette was qualified to service the generator.

Plaintiff seeks the amounts paid to Commander: first for the consultation (ex 8); to replace a gas regulator assembly (see ex 9, invoice dated 9/23/23); and then install a new automatic transfer switch (ex 10, invoices dated 8/7/2023 and 4/30/2024), which total $10,123.85.

Defendant's president Frank Navetta credibly testified that plaintiff failed to pay an invoice dated April 4, 2023 in the amount of $ 939.45 (ex C). He further testified that the invoice was mailed to him and no payment has been made (tr at 28). Navetta also credibly testified that the amount due was a little higher than in previous years because defendant changed the battery and provided other parts and material, as is normal under PM2 servicing, like oil and spark plugs (tr at 30). While Navetta acknowledged that a battery could last 2-3 years and plaintiff's battery was changed last year, a battery's warranty is only 1 year; so if a technician sees that its failed, they change it (tr at 30-32).

Plaintiff has the burden of proof to establish his cause of action by a preponderance of the evidence. Defendant similarly has to establish its cause of action by the same standard.

"The preponderance of the evidence means the greater part of the evidence. It does not mean the greater number of witnesses or the greater length of time taken by any party.

The phrase refers to the quality of the evidence, that is, its convincing quality, the weight and effect it has on [the mind of the trier of fact], not to the quantity. The law requires that for [plaintiff] to prevail on a claim, the evidence that supports [plaintiff's] claim must appeal to [the trier of fact] as more nearly representing what took place than the evidence opposed to [plaintiff's] claim. If it does not, or if it weighs so evenly that [the trier of fact is] unable to say there is a preponderance on any side, then [the trier of fact] must decide the question against [plaintiff]" (PJI 1:23).

"The evidence must be of such weight as to produce a reasonable belief in the truth of the facts asserted; mere proof of a possibility is insufficient to establish a fact by a preponderance of the evidence" (8 Carmody-Wait 2d § 56:14).

To state a negligence claim, "a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom" [*4](Solomon v City of New York, 66 NY2d 1026, 1027 [1985]).

"In negligence cases, once a duty is found, the duty, in theory at least, always requires the same [general] standard of conduct, that of a reasonable person under the same or similar circumstances" (Prosser & Keeton, Torts § 37 [4] at 236 [5th ed]). Accordingly, in order to determine whether liability exists, "the [finder of fact] must compare the defendant's conduct to that of a reasonable person under like circumstances" (Reis v Volvo Cars of N. Am., 24 NY3d 35, 42 [2014]). Where the case consists "exclusively of facts whose significance could be well divined by laymen," the [finder of fact] is "expected to apply their ordinary judgment and practical experience" in order to determine what a reasonably prudent person would have done under the particular circumstances of the case and whether the defendant deviated from that standard of care (Havas v Victory Paper Stock Co., 49 NY2d 381, 386 [1980]).

However, the Court of Appeals has recognized a "subtle" distinction between this general "reasonable-person standard" and the standard to be applied when a defendant has special training or experience in a trade or profession and is engaged in that capacity (see Reis v Volvo Cars of N. Am., 24 NY3d at 42). As a general matter, one who undertakes to render services in the practice of a profession or trade is "held to the level of skill and care used by others in the community who practice the same profession [or trade]" (id.). "A claim of professional negligence requires proof that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury" (Georgetti v United Hosp. Med. Ctr., 204 AD2d 271, 272 [1994]).

Accordingly, where an individual is alleged to have committed professional negligence, a jury must compare the defendant's conduct to the degree of skill and care used by others in the community who practice in the same field. The degree of skill and care that must be exercised in each particular case "may be established through evidence of the general customs and practices of others who are in the same business or trade as that of the alleged tortfeasor" (Landon v Kroll Lab. Specialists, Inc., 91 AD3d at 84). This may be accomplished by presenting the testimony of an expert who has demonstrated "his or her knowledge of the relevant standards of care" in the trade or profession at issue (Texter v Middletown Dialysis Ctr., Inc., 22 AD3d 831, 831 [2005]). Such expert testimony has "been held to be admissible not only to explain highly technical medical or surgical questions, but has also been found appropriate to clarify a wide range of issues calling for the application of accepted professional standards" (Selkowitz v County of Nassau, 45 NY2d 97, 102 [1978] [citation omitted]).

With respect to the element of beach of the duty of care, the Court finds plaintiff failed to establish the specialized or heightened duty of care that may have been owed under the circumstances and that defendant and its employees departed in some way from such a specialized or otherwise reasonable standard of care.

Although plaintiff testified that he consulted with other contractors Commander Power Systems and Huntington Power by telephone (tr at 4), they did not testify at trial, and there was [*5]no industry expert testimony or other evidence regarding any aspect in which defendant did not follow the generally-accepted industry protocol, nor any other evidence of conduct that could constitute a deviation from the reasonable standard of care that was owed.

Regarding LeGette's licensing, plaintiff did not submit any evidence or point to a statute or regulation that required technicians to be certified by Generac itself. Notably the generator's manual states that the unit should be serviced by "competent, qualified personnel" and the Court is satisfied that Mr. LeGette met this standard based on his training and experience.

Further, based on the Court's finding that the switch was not necessarily in proper working condition before the service visit, and evidence regarding the age of the generator, plaintiff also failed to establish causation, i.e., that the transfer switch failed due to some action of defendant's technician, rather than some other cause (see Thomas v New York City Tr. Auth., 194 AD2d 663, 664 [2d Dept 1993] ["The law does not require the plaintiff's proof to exclude every other possible cause of the accident, other than the defendant's negligence. However, the record must render the other possible causes sufficiently remote to enable the trier of fact to reach a verdict based upon the logical inferences to be drawn from the evidence, not upon speculation"]).

Although plaintiff points to the wrench as evidence, it may be evidence that defendant's technician attempted to manually unstick the transfer switch, but it is not on its own evidence of what caused the transfer switch to fail.

Plaintiff's claims also suggest a res ipsa type of claim (tr at 3 [plaintiff testified that "when [LeGette] came into the house, the unit was working. When he left the house, the unit was totally broken"]). "[T]he doctrine of res ipsa loquitur" may apply "[w]here the actual or specific cause of an accident is unknown" and it permits a fact-finder "in certain circumstances [to] infer negligence merely from the happening of an event and the defendant's relation to it" (Kambat v St. Francis Hosp., 89 NY2d 489, 494 [1997]). The following three conditions must be met in order for the fact-finder to consider the doctrine: "[f]irst, the event must be of a kind that ordinarily does not occur in the absence of someone's negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff" (id.). Here, the first element cannot be met, at the very least, because of the other potential causes for the transfer switch's failure (see, e.g., Cortes v Cent. El., Inc., 45 AD3d 323, 323-24 [1st Dept 2007] ["Plaintiff's reliance on the doctrine of res ipsa loquitur is misplaced since plaintiff's fall could have occurred in the absence of negligence and could have been caused by a misstep on his part"]; cf. Bicchetti v Toyota, 217 AD3d 743, 743-45 [2d Dept 2023]).

Defendant's first and second counterclaims are for account stated and breach of contract, respectively, for the annual maintenance service visit invoice in the amount of $ 939.45. The parties did not dispute that there is a contract between them for the annual maintenance services and plaintiff's bookkeeping records submitted do not reflect payment of the invoice. Plaintiff did not assert any objection to defendant's work other than the alleged negligence claim(s) set forth in the complaint, which plaintiff failed to prove. Accordingly, defendant's second counterclaim for breach of contract is granted in the amount of $ 939.45 and the first counterclaim is dismissed as duplicative.

The third counterclaim asserted by defendant is in the amount of $1,000 for attorneys' fees on the basis that the action is frivolous. "The decision to award costs or sanctions, and the [*6]amount or nature of those costs or sanctions, is generally entrusted to the trial court's sound discretion" (see Perna v Reality Roofing, Inc., 122 AD3d 821, 822 [2d Dept 2014]; Pickens v Castro, 55 AD3d 443, 444 [1st Dept 2008]). The Court does not find the action lacking a basis in law or fact to the extent to be considered frivolous, and the third counterclaim for an award of attorneys' fees is accordingly dismissed.

As to plaintiff's complaint, the Court's VERDICT is in favor of defendant and plaintiff's complaint is dismissed; and it is hereby

ORDERED that the Clerk is directed to enter a judgment in favor of defendant dismissing the complaint.

As to defendant's counterclaims, the Court's VERDICT is in favor of defendant; and it is hereby

ORDERED that the Clerk is directed to enter a judgment on the second counterclaim in favor of defendant and against plaintiff in the amount of $ 939.45 with interest at the rate of 2 % from May 4, 2023 through entry of judgment, together with costs and disbursements as taxed by the Clerk.

This constitutes the decision, verdict, and order of the Court.