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Joan A. Rose v. Lagadakia Realty Corp

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


April 26, 2011

JOAN A. ROSE,
RESPONDENT,
v.
LAGADAKIA REALTY CORP.,
APPELLANT.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered August 12, 2009.

Rose v Lagadakia Realty Corp.

Decided on April 26, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 $3,814.

ORDERED that the judgment is reversed, without costs, and the action is dismissed.

Plaintiff commenced this small claims action to recover the sum of $4,000 for damage to her personal property resulting from a bedbug infestation. Plaintiff, who concededly had been evicted from her premises on the basis of the nonpayment of $6,500 in rent, insisted that, prior to her eviction, a bedbug infestation had required repeated extermination efforts and, ultimately, the discarding of two bed frames and mattresses, a dresser, and other items of personal property. At the non-jury trial, plaintiff offered what apparently was a receipt for the purchase of replacement furniture which she had installed in her new apartment. The Civil Court found for plaintiff, awarding her the principal sum of $3,814. Defendant appeals, and we reverse.

Plaintiff failed to present competent evidence of her damages, which were apparently determined on the basis of plaintiff's purchase receipts for new furniture, and not based on the value of the discarded furniture "immediately before the loss" (Lozinsky v Michael Neubauer Servicenter, 259 AD2d 673 [1999]; see Jaklitsch v Finnerty, 96 AD2d 690 [1983]). While a small claims court is not bound by the rules of evidence (CCA 1804), and a personal property owner "familiar with its quality and condition, may testify as to [the property's] value" (Bertin v Bertin, 14 Misc 3d 144[A], 2007 NY Slip Op 50392[U] [App Term, 9th & 10th Jud Dists 2007], quoting Korn v American Airlines, Inc., 11 Misc 3d 87, 88-89 [App Term, 9th & 10th Jud Dists [2006]; see also Fassett v Fassett, 101 AD2d 604, 605 [1984]; 36 NY Jur 2d, Damages §§ 82, 87]), there must be some evidence of the property's "original cost, age and condition at the time of the [loss]" (Slepoy v Kliger, 26 Misc 3d 126[A], 2009 NY Slip Op 52603[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see Lake v Dye, 232 NY 209, 214 [1921]; Henderson v Holley, 112 AD2d 190 [1985]). Plaintiff offered no testimony in relation to the property's value at the time of the loss. Absent competent proof of value, the Civil Court's determination could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]).

In view of the foregoing, we do not reach the issue of liability.

Accordingly, as the judgment did not render substantial justice between the parties in accordance with the rules and principles of substantive law (see CCA 1807), the judgment is reversed and the action dismissed.

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

Decision Date: April 26, 2011

20110426

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