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Marc Henig v. Forever Diamond

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


December 23, 2010

MARC HENIG,
APPELLANT,
v.
FOREVER DIAMOND,
RESPONDENT.

Appeal from a judgment of the District Court of Nassau County, Fourth District (Angelo A. Delligatti, J.), entered January 21, 2009. The judgment, after an inquest, dismissed the action.

Henig v Diamond

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This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2010

PRESENT:TANENBAUM, J.P., MOLIA and IANNACCI, JJ

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover the sum of $5,000. Defendant defaulted, and, at the inquest, plaintiff testified that several months after he had purchased a bracelet from defendant, half of the diamonds fell out. By judgment entered January 21, 2009, the District Court dismissed the action, noting that "based upon the evidence produced at inquest, the plaintiff failed to establish damages."

A review of the record supports the District Court's finding that plaintiff failed to establish his damages. Plaintiff's testimony was internally inconsistent; while he initially testified that he had purchased the bracelet, and that half of the stones had fallen out in the summer of 2007, upon questioning by the court, he acknowledged that it was "possible" that the events had occurred in 2005, as alleged in his small claims complaint form. Moreover, plaintiff did not introduce paid itemized bills or invoices or two repair estimates (UDCA 1804) demonstrating his damages. In the absence of such evidence, plaintiff's damages cannot be ascertained (see Cuthkelvin v Big's Bedrooms, 1 Misc 3d 129[A], 2003 NY Slip Op 51569[U] [App Term, 9th & 10th Jud Dists 2003]).

Consequently, as the judgment in favor of defendant rendered substantial justice between the parties in accordance with the rules and principles of substantive law (UDCA 1807), it is affirmed.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.

Decision Date: December 23, 2010

20101223

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