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Annette Rodriguez v. Mitch's Transmission

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


June 28, 2011

ANNETTE RODRIGUEZ,
APPELLANT,
v.
MITCH'S TRANSMISSION,
RESPONDENT.

Appeal from a judgment of the City Court of Newburgh, Orange County (Peter M. Kulkin, J.), entered March 24, 2010.

Rodriguez v Mitch's Transmission

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2011

PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ

The judgment, after a non-jury trial, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

Plaintiff brought this small claims action to recover for damages she allegedly sustained as a result of defendant's faulty repairs to her vehicle and failure to replace her transmission. Following a non-jury trial, the City Court found in favor of defendant and dismissed the action.

Plaintiff bore the burden of proving her case by a preponderance of the evidence (Naclerio v Adjunct Faculty Assn., 1 Misc 3d 135[A], 2003 NY Slip Op 51644[U] [App Term, 9th & 10th Jud Dists 2003], citing Ellis v Collegetown Plaza, 301 AD2d 758 [2003]). Since, at the time of the trial of the action, the alleged defects in plaintiff's vehicle had not been repaired, it was incumbent on plaintiff to come forward with expert testimony in support of her case, or to produce two itemized estimates for services or repairs, in order to make a prima facie showing of the reasonable value of and necessity for such repairs (see UCCA 1804; see also Lopez v Dobler Chevrolet, Inc., 16 Misc 3d 137[A], 2007 NY Slip Op 51738[U] [App Term, 9th & 10th Jud Dists 2007]; Murov v Celentano, 3 Misc 3d 1 [App Term, 9th & 10th Jud Dists 2003]). As plaintiff failed to come forward with such evidence, we find that the judgment dismissing the action provided the parties with substantial justice in accordance with the rules and principles of substantive law (UCCA 1804, 1807).

We note that we do not consider those assertions made by plaintiff for the first time on appeal which, not having been raised below, are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the judgment is affirmed.

Nicolai, P.J., LaCava and Iannacci, JJ., concur. Decision

Date: June 28, 2011

20110628

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