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Dora Cavalluzzi v. Joe Byrne Doing Business As Fave Construction

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


December 16, 2010

DORA CAVALLUZZI,
APPELLANT,
v.
JOE BYRNE DOING BUSINESS AS FAVE CONSTRUCTION,
RESPONDENT.

Appeal from a judgment of the Justice Court of the Town of Orangetown, Rockland County (Richard G. Ramsay, J.), entered July 10, 2008.

Cavalluzzi v. Byrne

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This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2010

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

The judgment, insofar as appealed from, after a non-jury trial, dismissed plaintiff's cause of action.

ORDERED that the judgment, insofar as appealed from, is affirmed, without costs.

Plaintiff brought this small claims action to recover damages for allegedly defective contracting work performed in her kitchen and bathroom by defendant and by an electrician and a plumber who were hired by defendant. At the non-jury trial, plaintiff testified that she had retained defendant to repair her kitchen and bathroom, which had been damaged by mold. The parties had agreed that plaintiff would provide all materials and that defendant would perform renovations for a total contract price of $4,000. Plaintiff paid defendant $2,000 before defendant ceased work. Plaintiff testified that defendant had failed to complete the job, and that defendant's work was so unsatisfactory that she would need to hire individuals to redo portions of the work, at substantial expense. In response, defendant testified that he completed 90% of the work he had agreed to do for plaintiff, and that he had left the job because of disagreements with plaintiff concerning the scope and particulars of the job he had been hired to do. After trial, the Justice Court, insofar as is relevant to this appeal, dismissed plaintiff's cause of action.

Plaintiff bore the burden of proving both the need for and the reasonable cost of the repairs that were necessitated by defendant's allegedly deficient work. As, at trial, she failed to present expert testimony concerning the cost to complete the job, or any itemized bill or invoice, receipted or marked paid, or two itemized estimates for such services or repairs (see UJCA 1804; Cortes v Adams Concrete and Constr., 25 Misc 3d 133[A], 2009 NY Slip Op 52180[U] [App Term, 9th & 10th Jud Dists 2009]), plaintiff failed to make out a prima facie case.

On appeal, plaintiff contends that defendant's alleged lack of licensure mandated a verdict in her favor. We note that, at trial, defendant testified that he was licensed to do home improvements; in any event, defendant's licensure or lack thereof is not relevant to plaintiff's right to recover damages from defendant for his allegedly defective work (see Voo Doo Contr. Corp. v L & J Plumbing & Heating Co., 264 AD2d 361 [1999]; Unger v Travel Arrangements, 25 AD2d 40 [1966]; see also 13 NY Jur 2d, Businesses and Occupations § 68).

We further note that we do not consider the materials plaintiff submitted to the Justice Court following trial, or to this court, as those materials are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the judgment, insofar as appealed from, is affirmed as it rendered substantial justice between the parties according to the rules and principles of substantive law (UJCA 1807).

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

Decision Date: December 16, 2010

20101216

© 1992-2010 VersusLaw Inc.



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