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Evermist, Ltd. Lawn Sprinklers v. Ellen Pappas

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


December 3, 2010

EVERMIST, LTD. LAWN SPRINKLERS,
RESPONDENT,
v.
ELLEN PAPPAS,
APPELLANT.

Appeal from a judgment of the Justice Court of the Town of Rye, Westchester County (Anthony M. Provenzano, J.), entered December 26, 2005. The judgment, after a non-jury trial, awarded plaintiff the principal sum of $693.78.

Evermist, Ltd. Lawn Sprinklers v Pappas

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 3, 2010

PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Justice Court for a new trial limited to the issue of damages.

Plaintiff lawn sprinkler company commenced this action to recover for sprinkler system services performed for defendant. After a non-jury trial, the Justice Court found in favor of plaintiff, and awarded plaintiff the amount which it claimed was due for the services it had rendered to defendant.

The evidence adduced at trial on December 20, 2005 established that on three separate occasions, plaintiff had provided services at defendant's premises, at defendant's behest, and was not compensated therefor. In her testimony, defendant acknowledged that she owed plaintiff money for the first visit and that plaintiff had never indicated that she would not be charged for the subsequent visits. Accordingly, plaintiff was entitled to recover the reasonable value of the work performed for defendant (see United Bldg. Maintenance Assoc., Inc. v 510 Fifth Ave. LLC, 18 AD3d 333 [2005]).

Plaintiff's president testified that, for the past two years, he has computed labor charges at the fixed hourly rate of $95 for two workers, a five-dollar increase from the rate he had charged for the prior seven years. He also testified that defendant was charged $175 for one hour and 25 minutes of labor on July 8, 2004, $170 for one and a half hours of labor on July 20, 2004 and $50 for twenty minutes of labor on July 26, 2004.

Defendant's contention on appeal, that plaintiff's president's testimony was inadmissible hearsay, is unpreserved, since defendant did not object to its admission during the trial (CPLR 5501 [a] [3]; Gunnarson v State, 95 AD2d 797, 798 [1983]; see also Feltus v Staten Is. Univ. Hosp., 285 AD2d 445, 446 [2001]). Thus, plaintiff's president's testimony could be used to determine the value of the services rendered, with its weight a question to be determined by the trier of fact (see Collins v Fowler, 62 App Div 614 [1901]; 22A NY Jur 2d, Contracts § 618). Indeed, a determination of the reasonable value of the services rendered may be based solely on the testimony of a witness, like plaintiff's president, with knowledge of the actual costs (see W.M.S. Bldrs. v Newburgh Steel Prods., 289 AD2d 567 [2001]; D'Angelo v State of New York, 39 NY2d 781, 782-873 [1976]). However, in the instant case, plaintiff's president's testimony was inconsistent. Since plaintiff's president's testimony that he determines labor charges based on a fixed hourly rate conflicted with his testimony concerning how much he actually charged defendant for labor, and to be recoverable "damages must not be merely speculative, possible or imaginary," a new trial limited to the issue of damages is necessary (see Najjar Indus. v City of New York, 87 AD2d 329, 334 [1982]).

In light of the foregoing, the judgment is reversed and a new trial is ordered to determine the amount of damages to be awarded plaintiff.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.

Decision Date: December 03, 2010

20101203

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