Appeal from a judgment of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered February 17, 2009.
Decided on November 9, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.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: WESTON, J.P., PESCE and RIOS, JJ
The judgment, after a non-jury trial, dismissed plaintiff's cause of action and awarded defendant the principal sum of $2,303.18 on his counterclaim.
ORDERED that the judgment is modified by striking the award in favor of defendant on his counterclaim and by providing that defendant's counterclaim is dismissed; as so modified, the judgment is affirmed, without costs.
Plaintiff brought this small claims action to recover for damages sustained to his automobile in a collision on May 15, 2008. Defendant counterclaimed, alleging that the accident was caused by plaintiff's negligence rather than his own, and that his vehicle too had sustained damage in the collision, for which he was entitled to recover. Following a non-jury trial at which both parties testified, judgment was entered dismissing plaintiff's action and awarding defendant the principal sum of $2,303.18 on his counterclaim.
We leave undisturbed the Civil Court's implicit liability finding, which was necessarily premised upon the trial judge's conclusions as to the credibility of the witnesses and had support in the record (see Vizzari v State of New York, 184 AD2d 564 ; Kincade v Kincade, 178 AD2d 510, 511 ). We do not consider those materials annexed to plaintiff's brief which are dehors the record (see Chimarios v Duhl, 152 AD2d 508 ).
However, proof of damages is an essential element of defendant's prima
facie case (see Colyar v Quartaroni, 14 Misc 3d 144[A], 2007 NY Slip
Op 50391[U] [App Term, 9th
& 10th Jud Dists 2007]), and defendant's failure to prove damages requires
dismissal of the counterclaim (see Henig v Forever Diamond, 30 Misc 3d 130[A],
2010 NY Slip Op 52319[U] [App Term, 9th & 10th Jud Dists 2010]). An itemized
bill or invoice, receipted or marked paid, or two itemized estimates for services or
repairs "are admissible in evidence and are prima facie evidence of the reasonable
value and necessity of such services and repairs" (CCA 1804). The only evidence
defendant submitted, however, in support of his claim for damages was a single "statement,"
which his attorney described as constituting an estimate from the company that had repaired
defendant's car. As that statement was insufficient to establish defendant's prima facie case
on his counterclaim for damages, we conclude that so much of the judgment as was in favor
of defendant on his counterclaim failed to effect substantial justice according to the rules and
principles of substantive law (CCA 1804, 1807).
Accordingly, the judgment is modified by providing that defendant's counterclaim is dismissed.
Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: November ...