SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
April 2, 2012
NASSAU TENT, APPELLANT, --
ERICA DRESNER, RESPONDENT.
Nassau Tent v Dresner
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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 2, 2012
PRESENT: MOLIA, J.P., LaCAVA and IANNACCI, JJ
Appeal, on the ground of inadequacy, from a judgment of the District Court of Nassau County, Second District (Norman Janowitz, J.), entered February 4, 2010. The judgment, after a non-jury trial, awarded plaintiff the principal sum of $750.
ORDERED that the judgment is modified by increasing the award in favor of plaintiff to the principal sum of $4,929.47; as so modified, the judgment is affirmed, without costs.
Plaintiff commenced this small claims action to recover the sum of $4,929.47 for defendant's failure, after renting a party tent and a dance floor from plaintiff, to pay the rental fees. Defendant did not contest the amount unpaid under the contract but maintained that she was entitled to a setoff because the tent and dance floor had destroyed the sod on her property, which she then had to replace. After a non-jury trial, the District Court found that defendant was entitled to a setoff and awarded plaintiff the principal sum of $750.
Upon a review of the record, including the contract's disclaimer of liability clause, we find that defendant failed to demonstrate her entitlement to a setoff. Furthermore, defendant did not proffer sufficient evidence to establish that the tent and dance floor had destroyed any, let alone all, of the sod on her property. In view of the foregoing, we conclude that substantial justice was not done between the parties according to the rules and principles of substantive law (UDCA 1804, 1807). Accordingly, the judgment is modified by increasing the award in favor of plaintiff to the sum of $4,929.47, the full amount due plaintiff under the contract.
Molia, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: April 02, 2012
© 1992-2012 VersusLaw Inc.