SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
April 11, 2011
ROBERT B. CLAVEL,
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This opinion is uncorrected and will not be published in the printed Official Reports.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 ; Williams v Roper, 269 AD2d 125, 126 ).
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 ; 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 submitted here fell short of doing so. Accordingly, I vote to affirm.
As a general rule, damages are established in a small claims action by submission of either a paid itemized bill or invoice, or two itemized estimates for services or repairs (see CCA 1804). However, courts have recognized that a single estimate may be sufficient to prove damages, provided that it was prepared by the insurance carrier for the defendant (see Felipe v Das, 22 Misc 3d 141[A], 2009 NY Slip Op 50444[U] [App Term, 9th & 10th Jud Dists 2009]; Miller v Sanchez, 6 Misc 3d 479, 486 [Civ Ct, Kings County 2004]). The rationale for permitting such proof is that it qualifies as a party admission. A party admission alone, however, is not always sufficient to make a prima facie showing on the issue of damages (see Miller v Sanchez, 6 Misc 3d at 486). "The fact-finder must [still] assess the admission's probative weight and value, which may range from the lowest, or none at all, to conclusiveness,' depending upon the conditions and circumstances' under which it was made" (id., quoting Gangi v Fradus, 227 NY 452, 457 ). Moreover, statements of damages are inadmissible if they are part of an offer of settlement (see CPLR 4547).
Here, plaintiff's only proof of damages -- a letter prepared by a GEICO claims examiner on defendant's behalf -- was nothing more than an offer of settlement that lacked the probative weight necessary to establish, prima facie, the cost of repairing plaintiff's vehicle. In the letter, GEICO indicates plaintiff's total damages to be $3,601.18, but offers to settle plaintiff's claim for half that amount, or $1,800.50. In doing so, GEICO notes that both drivers gave "conflicting" reports of the accident, there were no witnesses to the accident, and no evidence to support either driver.[FN1] Other than offering to pay 50% of plaintiff's damages, the letter contains no itemized list of those damages or any other details as to the cost of repair (compare Mirro v Kowalski, 23 Misc 3d 1137[A], 2009 NY Slip Op 51163[U] [Civ Ct, Kings County 2009] [plaintiff's submission of a "repair estimate" prepared by a mechanic of defendant's insurance carrier was sufficient to prove plaintiff's damages]; Miller v Sanchez, 6 Misc 3d at 486 [plaintiff's submission of a "repair estimate" prepared by defendant's insurance carrier was sufficient to establish damages, where the estimate was "highly itemized as to parts and labor, with the latter specified in tenth-of-an-hour segments"]). Indeed, GEICO's letter was not an estimate of anything, but merely an offer of settlement, which is inadmissible as proof of damages (see CPLR 4547; Miller v Sanchez, 6 Misc 3d at 481 [while highly itemized repair estimate prepared by defendant's insurer was sufficient to establish damages, insurer's offer to settle plaintiff's claim was not admissible as to the value of plaintiff's claim]). Without proof of damages, the Civil Court correctly dismissed the action and provided the parties with substantial justice according to the rules of substantive law (CCA 1804).
Accordingly, I vote to affirm the judgment. Decision Date: April 11, 2011 Footnotes Footnote 1: It should be noted that both plaintiff and defendant were insured by GEICO at the time of the accident. Plaintiff attached a copy of GEICO's letter to her brief on appeal.
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