New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
May 15, 2012
GEORGE T. MCCROSSIN,
BENSON AVENUE OWNERS CORPORATION,
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered December 9, 2010.
McCrossin v Benson Ave. Owners Corp.
Decided on May 15, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., WESTON and ALIOTTA, JJ
The judgment, after a non-jury trial, awarded plaintiff the principal sum of $1,750.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial limited to the issue of damages.
Plaintiff commenced this small claims action to recover the sum of $1,750 for damage to his cooperative apartment caused by, among other things, water emanating from the apartment above. At a non-jury trial, plaintiff testified that, after renovations had been completed in the apartment directly above his, water began leaking into his apartment from the apartment above. After trial, the Civil Court awarded judgment in favor of plaintiff in the principal sum of $1,750.
Plaintiff established that defendant had breached the warranty of habitability (see Real Property Law § 235-b; Frisch v Bellmarc Mgt., 190 AD2d 383 ; Heights 170 LLC v York, 29 Misc 3d 138[A], 2010 NY Slip Op 52045[U] [App Term, 1st Dept 2010]). However, with respect to the issue of damages, while at trial plaintiff referred to two estimates for repairs, no estimates were admitted into evidence. Consequently, we find that the judgment did not render substantial justice between the parties according to the rules and principles of substantive law (see CCA 1804, 1807; Ross v Friedman, 269 AD2d 584 ; William v Roper, 269 AD2d 125, 126 ).
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial limited to the issue of damages.
Pesce, P.J., Weston and Aliotta, JJ., concur. Decision Date: May 15, 2012
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