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Miriam Sunshine v. Robert B. Clavel

April 11, 2011

MIRIAM SUNSHINE,
APPELLANT,
v.
ROBERT B. CLAVEL,
RESPONDENT.



Appeal from a judgment of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered July 22, 2008.

Sunshine v Clavel

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 11, 2011

PRESENT: WESTON, J.P., GOLIA and RIOS, 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 plaintiff in the principal sum of $3,601.

Plaintiff commenced this small claims action to recover the sum of $5,000 for property damage to her vehicle. After a non-jury trial, the Civil Court dismissed the action, finding that, while plaintiff had established liability, she had failed to prove damages. On appeal, plaintiff asserts that a letter from defendant's insurance carrier that she submitted at trial was sufficient to prove damages. Upon a review of the record, we find that the judgment did not provide the parties with substantial justice according to the rules and principles of substantive law (CCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]).

At trial, plaintiff submitted a letter from GEICO, defendant's insurance carrier, which, among other things, valued the damage to plaintiff's vehicle at $3,601. Such valuation constituted a prima facie showing of the reasonable cost of repairs to the vehicle (see Felipe v Das, 22 Misc 3d 141[A], 2009 NY Slip Op 50444[U] [App Term, 9th & 10th Jud Dists 2009]; see generally DiCamillo v City of New York, 245 AD2d 332, 333 [1997]; Prince, Richardson on Evidence § 8-231, at 543 [Farrell 11th ed]), i.e., plaintiff's damages. Accordingly, the judgment is reversed and plaintiff is awarded judgment in the principal sum of $3,601.

Golia and Rios, JJ., concur.

Weston, J.P., dissents in a separate memorandum.

Weston, J.P., dissents and votes to affirm the judgment in the following memorandum:

At issue on this appeal is whether plaintiff presented sufficient evidence to establish her damages. While I recognize that a single estimate prepared by a defendant's insurance carrier may be sufficient to prove damages, the purported estimate ...


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