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Gerald Martin v. Lehavre Owners Corp.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


January 26, 2011

GERALD MARTIN,
RESPONDENT,
v.
LEHAVRE OWNERS CORP., INC.,
APPELLANT,
AND PSONY LHCP, LLC,
DEFENDANT.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered June 30, 2009.

Martin v Lehavre Owners Corp., Inc.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2011

PRESENT: PESCE, P.J., WESTON and GOLIA, JJ

The judgment, insofar as appealed from, after a non-jury trial, awarded plaintiff the principal sum of $2,150 as against defendant Lehavre Owners Corp., Inc.

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and the action, insofar as it is against defendant Lehavre Owners Corp., Inc., is dismissed.

In this small claims action, plaintiff seeks to recover $4,600 as against defendant Lahavre Owners Corp., Inc. (Lehavre), a cooperative corporation, for damage to his personal property allegedly sustained during a flood in an apartment that he sublets from the shareholder proprietary lessee. At the non-jury trial, plaintiff testified that the toilet in the bathroom had overflowed, causing the damage. He asserted that the flood had been caused by certain repair work negligently performed three or four years prior to the flood by Lehavre's plumber. Insofar as is relevant to this appeal, the Civil Court awarded plaintiff the principal sum of $2,150 as against Lehavre, which now appeals from the judgment.

Upon a review of the record, we find that the judgment, insofar as it is against Lehavre, did not provide substantial justice between the parties in accordance with the rules and principles of substantive law (CCA 1807). The proof at trial failed to establish any negligence on the part of Lehavre in making repairs to the toilet approximately three to four years prior to the flood. Moreover, plaintiff did not establish that the flooding was caused by the alleged repairs. In addition, plaintiff could not seek to recover for the alleged damage against Lehavre based on a theory of breach of contract since he was not in privity with Lehavre (see Matter of Malek v Franco, 263 AD2d 427 [1999]). Accordingly, the judgment, insofar as it awarded plaintiff the sum of $2,150 as against Lehavre, is reversed and the action, insofar as it is against Lehavre, is dismissed.

Pesce, P.J., Weston and Golia, JJ., concur.

Decision Date: January 26, 2011

20110126

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