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Al Levine v. Barry Stanchio and Roslyn Heights Auto Transport

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department


December 16, 2011

AL LEVINE,
APPELLANT,
v.
BARRY STANCHIO AND ROSLYN HEIGHTS AUTO TRANSPORT, INC., DOING BUSINESS AS SUNSET TOWING,
RESPONDENTS.

Appeal from a judgment of the District Court of Nassau County, Third District (Norman Janowitz, J.), entered May 27, 2009.

Levine v Stanchio

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2011

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

The judgment, insofar as appealed from, after a non-jury trial, dismissed plaintiff's cause of action.

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and judgment is directed to be entered in favor of plaintiff in the principal sum of $4,733.

In this small claims action, plaintiff sought to recover the sum of $5,000 for commissions and unpaid wages for overtime work he had performed for defendants. Defendants counterclaimed, seeking to recover the sum of $5,000 as compensation for excess phone calls which plaintiff allegedly had made on a cell phone that had been provided to him by defendants.

At a non-jury trial, plaintiff testified that he had worked for defendants over a period of years as a tow truck driver, that he had been paid a wage for the work he had performed for defendants between the hours of 8:00 A.M. and 6:00 P.M., and that for jobs performed outside of those hours the parties had agreed that he would be paid a commission of 50% of the amounts charged to defendants' customers. He said that some customers, who had accounts with defendants, had paid defendants through those accounts, but that others had paid him directly in cash. Plaintiff stated that he kept the cash he had been paid, and had applied the cash payments against the total amounts defendants owed him for his work. He introduced into evidence the records upon which he based his claims.

Defendant Barry Stanchio testified that he was the owner of defendant Roslyn Heights Auto Transport, Inc., doing business as Sunset Towing Service. Stanchio did not dispute the terms of the agreement to which plaintiff had testified for the payment of commissions and wages, but contested the completeness of plaintiff's records. Stanchio submitted into evidence his own records, which substantially supported plaintiff's claim. In his testimony, he focused primarily on his counterclaim for excess cell phone charges.

Following the trial, the District Court dismissed both plaintiff's cause of action and defendant's counterclaim, upon a finding that "neither party [had] proved a prima facie case." Plaintiff appeals from so much of the judgment as dismissed his cause of action.

The evidence presented by plaintiff established his prima facie case (see Hussey v Leggio Agency, 299 AD2d 690, 691 [2002]). Plaintiff's exhibits documented net unpaid commissions of $4,906.50; however, defendants' exhibits established that $173.50 of that amount was not due, leaving a balance of $4,733 due to plaintiff. Under the circumstances, we find that the dismissal of plaintiff's cause of action for unpaid commissions failed to render substantial justice between the parties according to the rules and principles of substantive law (UDCA 1804, 1807). Accordingly, the judgment, insofar as appealed from, is reversed, and judgment is directed to be entered in favor of plaintiff in the principal sum of $4,733.

Molia, J.P., LaCava and Iannacci, JJ., concur.

Decision Date: December 16, 2011

20111216

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