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Yan Ge v. Felix A. Polanco

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


April 5, 2011

YAN GE, PLAINTIFF-APPELLANT,
v.
FELIX A. POLANCO,
DEFENDANT-RESPONDENT.

Per curiam.

Yan Ge v. Polanco

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 5, 2011

PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ

Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered on or about March 30, 2010, after trial, in favor of defendant dismissing the action.

Appeal from judgment (Raul Cruz, J.), entered on or about March 30, 2010, held in abeyance and the matter remanded to Civil Court for issuance of a decision in conformity with the requirements of CPLR 4213(b). The Civil Court shall file its findings of fact with this Court with all convenient speed.

The trial court failed to comply with CPLR 4213(b) in rendering the judgment in defendant's favor without setting forth its rationale or the facts essential to that determination. Inasmuch as the parties' conflicting testimony raises issues of credibility, the appropriate remedy is to hold the appeal in abeyance and remand the matter for issuance of a decision setting forth the essential facts as required by CPLR 4213(b) (see Brenner v De Bruin, 171 AD2d 833 [1991]; Infante v Nemet Truck & Auto Ctr., 26 Misc 3d 139[A], 2010 NY Slip Op 50260[U] [2010]; Bowie v St. Cabrini Nursing Home, Inc., 26 Misc 3d 128[A], 2009 NY Slip Op 52641[U] [2009]).

We note that, in a small claims action for damage to a motor vehicle, "a single repair estimate for the cost of repair may be sufficient to establish damages if the estimate was prepared by the insurance carrier for the defendant" (Felipe v Das, 22 Misc 3d 141[A], 2009 NY Slip Op 50444[U] [2009]; see Miller v Sanchez, 6 Misc 3d 479, 486 [2004]; see generally Tarantino v Albert, 160 AD2d 310, 314 [1990]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT

Decision Date:April 05, 2011

20110405

© 1992-2011 VersusLaw Inc.



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