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Joanne Corkery v. Robin Schulder

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


August 4, 2011

JOANNE CORKERY, RESPONDENT,
v.
ROBIN SCHULDER,
APPELLANT.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), dated December 15, 2009.

Corkery v Schulder

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 4, 2011

PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ

The judgment, after a non-jury trial, awarded plaintiff the principal sum of $1,993.92.

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

In this small claims action, plaintiff alleges that defendant sold her a dog with a congenital predisposition to contract a severe case of demodex mites. Plaintiff seeks to recover, among other things, the expenses she incurred for the dog's treatment. After a non-jury trial, the Civil Court awarded plaintiff the principal sum of $1,993.92 for the cost of treatment.

Our review is limited to determining whether the judgment of the Civil Court provided 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 [2000]). Plaintiff's cause of action was based on a breach of an express warranty. In order to establish the nature and origin of the dog's health defect, plaintiff was required, but failed, to present expert testimony. Thus, she did not demonstrate that defendant should be held responsible under the warranty for the cost of the dog's treatment. This proof may not be dispensed with merely because plaintiff chose to pursue her claim in the Small Claims Part of the Civil Court (see O'Connor v Levey, 31 Misc 3d 136[A], 2011 NY Slip Op 50698[U] [App Term, 9th & 10th Jud Dists 2011].

As no expert testimony was introduced at trial, we find that the Civil Court's determination as to defendant's liability did not provide the parties with "substantial justice." Accordingly, the judgment is reversed and the action dismissed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.

Decision Date: August 04, 2011

20110804

© 1992-2011 VersusLaw Inc.



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