Appeal from a judgment of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered July 1, 2009.
Shu v Air Sea Trucking, 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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., WESTON and GOLIA, JJ
The judgment, after a non-jury trial, awarded defendant the principal sum of $3,315 on its counterclaim.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial on the counterclaim.
In its counterclaim in this small claims action, defendant seeks damages from plaintiff, the owner of a trucking company which picked up and delivered shipping containers, based upon a theory of negligence and upon plaintiff's alleged breach of its contract with defendant. At the non-jury trial, defense counsel asserted that, as a result of plaintiff's failure to return a shipping container in a timely manner, plaintiff had caused defendant to incur a fine in the sum of $3,315. The Civil Court declined defendant's attorney's offer to have either defendant's president or defendant's vice president testify, even though both were present in court. Plaintiff testified that his driver had followed instructions and had properly completed the job. Following the trial, the Civil Court rendered a verdict in favor of defendant on the counterclaim in the sum of $3,315, and plaintiff appeals.
Although the court apparently considered several documents relating to
defendant's counterclaim, as well as a contract between the parties,
none of these documents are in the record and the court declined
defendant's offer to have a person with knowledge of the events at
issue to testify. In the absence of a complete record, a new trial on
the counterclaim is appropriate (see Colorito v Crown Heating & Cooling, Inc., 6 Misc 3d 131[A], 2005
NY Slip Op 50082[U] [App Term, 9th & 10th Jud Dists 2005]). We note that plaintiff's counsel argues on
appeal, and defendant does not dispute, that the parties did have a written contract. To the extent defendant
asserts that its counterclaim may be based on principles of negligence, no cause of action based on
negligence lies, since, "in general, there is no tort cause of action for the negligent performance of a contract" (22A NY Jur 2d, Contracts § 438;
see also Brown v Wyckoff Hgts. Med. Ctr., 28 AD3d 412 ; City of
New York v 611 W. 152nd St., 273 AD2d 125 ).
In view of the foregoing, and in order to render substantial justice between the parties (CCA 1804, 1807), we conclude that a new trial is warranted on defendant's counterclaim. Accordingly, the judgment on the counterclaim is reversed, and the action is remitted to the Civil Court for a new trial on the counterclaim so as to provide defendant an opportunity to establish its cause of action.
Pesce, P.J., Weston and Golia, JJ., concur.