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Albarran v. Bay Ridge Automotive Group

July 18, 2006

NELIDA O. ALBARRAN, RESPONDENT,
v.
BAY RIDGE AUTOMOTIVE GROUP, DOING BUSINESS AS BAY RIDGE AUTO MANAGEMENT CORP., APPELLANT.



Accepted for Miscellaneous Reports Publication

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Thursday, October 26, 2006

{**13 Misc 3d at 13} OPINION OF THE COURT

Memorandum

Judgment affirmed without costs.

Plaintiff commenced this action to recover $38,400 in damages due to defendant's alleged failure to properly repair her 2002 Toyota RAV 4. Plaintiff took her vehicle to defendant in October 2003 for its 30,000 mile checkup, at which time the vehicle, which plaintiff had leased in February 2002, had 30,555 miles on it. The vehicle's oil had last been changed in February 2003, at which time the vehicle had 14,000 miles on it. After checking plaintiff's vehicle, defendant's representative told her that the brakes needed to be repaired. The record on appeal does not indicate whether defendant changed the oil or replaced the spark plugs as part of the checkup, and there is no indication in the documentary evidence that defendant informed plaintiff that her vehicle needed an oil flush. However, defendant's own expert witness testified that, generally, an engine could seize if the oil was not changed. About 10 days later, in November 2003, the engine in plaintiff's vehicle seized on the New Jersey Turnpike, and the vehicle was towed to a Toyota dealership in Delaware where it was repaired. Plaintiff was charged $7,200 for labor and parts, plus $10 per day in storage fees. As of the date of trial, in November 2004, plaintiff had yet to retrieve her vehicle from the dealership in Delaware. The invoice from the Delaware shop indicated that the engine seized due to, inter alia, engine sludge buildup.

The court below noted in its written decision that the Delaware invoice "indicates that there were damaged threads on the #1 cylinder spark plug and there was 'oil starvation and sludge on oil control rings.' " The court, therefore, concluded that said conditions would not have existed--and, thus, would not have caused the engine to seize--had defendant performed an oil change and spark plug replacement as part of the vehicle's 30,000 mile checkup. We find that such a conclusion could have been reached under a fair interpretation of the evidence (see e.g. Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Perez v Garcia, 304 AD2d 544 [2003]) and, therefore, will not be disturbed on appeal.

Golia, J.P., dissents and votes to reverse the judgment and dismiss the complaint in the following memorandum: The admissible evidence established at trial below presents to me an{**13 Misc 3d at 14} entirely different set of facts and circumstances from those set forth in the majority opinion.

Plaintiff commenced the underlying action to recover $38,400 that she claimed as damages due her as a result of the defendant's failure to properly repair the subject automobile, a 2002 Toyota RAV 4. The gravamen of her claim is that the defendant performed certain automotive services on the vehicle and approximately 1½ weeks later the vehicle broke down on the New Jersey Turnpike and was towed to a Toyota dealer in the State of Delaware.

In support of her claim a document was entered into evidence which consisted of an unsworn report or "estimate" which contained the statement that "when they first looked at her car it looks like . . . a spark plug was put in incorrectly . . . after further review they noticed that the engine was starving from oil." The trial record leaves it unclear as to why this report was written in the "third person," that is "they noticed" rather than "I found." Consequently, not only was this report unsworn and not subject to cross-examination, but it is also rank hearsay. In addition to that report, the trial court accepted a two-page invoice dated October 25, 2003 generated by this defendant concerning the service performed on the subject vehicle as well as other notations.

At trial the plaintiff testified that she brought the subject SUV to the defendant due to her concern over a "check engine" light that came on. Although the plaintiff testified that all activities and communications with the defendant were done by her personally, the defendant's invoice entered by the plaintiff in evidence shows that all the documents concerning the repairs as well as the refusal to authorize certain repairs were signed by a Mr. William Negron who is purportedly the plaintiff's son, and who did not testify at trial below.

A careful examination of the record establishes that at no point during the presentation of the plaintiff's case did the plaintiff present any expert testimony or offer any other evidence in admissible form to establish the necessary elements of her case.

Her first failure was to establish that her car "broke down" due to the fact that her engine seized. The documents entered as her first exhibit (which was not preserved for review by this court) clearly do not rise to the level required to establish the initial predicate fact for this case to proceed, that is, that the car "broke down" due to a seized engine. This plaintiff is{**13 Misc 3d at 15} certainly competent to testify that she was driving the car and that at some point the engine stopped running. Indeed she could even testify as to the noises it made, what physically happened such as "bucking," "rattling," "clanging" or anything else she observed as the driver, assuming she was the driver. However, absent a qualified expert, she cannot establish that the engine seized, let alone that it seized as the result of oil deprivation. This failure is in addition to the fact that the "report" itself is inadmissible for the reasons set forth above.

The trial court asserts that the expert witness called by the defendant presented sufficient expert testimony to meet the plaintiff's burden. However, even the most cursory review of the testimony by defendant's expert makes it ...


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