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Charles Geddes and Elizabeth Geddes v. Kevin Mccray

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


January 10, 2011

CHARLES GEDDES AND ELIZABETH GEDDES,
APPELLANTS,
v.
KEVIN MCCRAY,
RESPONDENT.

Appeal from a judgment of the District Court of Suffolk County, Fifth District (James P. Flanagan, J.), entered February 24, 2009.

Geddes v. McCray

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 10, 2011

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

The judgment, after a non-jury trial, dismissed the action.

ORDERED that the judgment is reversed, without costs, and judgment is directed to be entered in favor of plaintiffs in the principal sum of $300.

Plaintiffs commenced this small claims action to recover for defendant's alleged breach of a contract to perform architectural services. After a non-jury trial, the District Court dismissed the action.

Upon a review of the record, we find that the District Court did not render substantial justice according to the rules and principles of substantive law (UDCA 1804, 1807). While the record supports the District Court's findings that defendant prepared interior alteration drawings and site plans, and made revisions to the parking on the site plans and, thus, was entitled to the fees received for those services, defendant did not revise the plans to address the drainage or other outstanding issues. Consequently, plaintiffs were entitled to the return of the $300 in fees advanced to defendant for such services (see generally Ricca v Samhall Interiors, Inc., 24 Misc 3d 129[A], 2009 NY Slip Op 51338[U] [App Term, 9th & 10th Jud Dists 2009]). We note that defendant attempted to return the $300 to plaintiffs, but plaintiffs refused to accept it. As the record established that defendant performed all of the other agreed upon services, this is the only sum plaintiffs are entitled to recover.

Plaintiffs' remaining contention is dehors the record and may not be considered (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the judgment is reversed and judgment is directed to be entered in favor of plaintiffs in the principal sum of $300.

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

Decision Date: January 10, 2011

20110110

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