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Rukavina Darko v. Brendan O'connor and Alexandra O'connor

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


April 11, 2011

RUKAVINA DARKO,
RESPONDENT,
v.
BRENDAN O'CONNOR AND ALEXANDRA O'CONNOR,
APPELLANTS.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (In-grid Joseph, J.), entered February 11, 2009.

Darko v O'Connor

Decided on April 11, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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:GOLIA, J.P., PESCE and RIOS, JJ.

The judgment, after a non-jury trial, awarded plaintiff the principal sum of $3,500 on his cause of action and awarded defendant Brendan O'Connor the principal sum of $1,000 on his counterclaim.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

Plaintiff commenced this small claims action to recover the sum of $3,751.94 for work he did on defendants' home. Defendant Brendan O'Connor counterclaimed to recover the sum of $5,000 as a result of plaintiff's failure to finish the job and for damage to defendants' home. After a non-jury trial, a judgment was entered awarding plaintiff the principal sum of $3,500 on his cause of action and awarding Brendan O'Connor the principal sum of $1,000 on his counterclaim.

We find that substantial justice has not been done between the parties according to the rules and principles of substantive law (CCA 1807). The Civil Court based its determination upon the fact that "the parties agreed that work was done and it was just the value of the work that was done that has to be determined." However, the parties offered conflicting testimony as to how much of the work was actually completed. Indeed, the issues of how much of the work was completed, whether plaintiff was entitled to recover for that work at all, and on what basis, and to what extent Mr. O'Connor is entitled to recover damages from plaintiff are the very issues raised by the parties in this action. Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

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

Decision Date: April 11, 2011

20110411

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