New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
August 27, 2012
A & P RAINALDI, INC.,
CHARLIE ARCADIPANE DOING BUSINESS AS 265 MAMARONECK AVE CO.,
Appeal from a judgment of the City Court of White Plains, Westchester County (Brian Hansbury, J.), entered January 24, 2011.
Decided on August 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: LaCAVA, J.P., NICOLAI and LaSALLE, JJ
The judgment, after a non-jury trial, awarded plaintiff the principal sum of $4,898.81.
ORDERED that the judgment is affirmed, without costs.
Plaintiff commenced this commercial claims action to recover the principal sum of $4,898.81 for repairs to, and replacement of, a fire sprinkler system at commercial premises owned by defendant. At a non-jury trial, Philip Rainaldi testified on behalf of plaintiff that, in 1996, while working with a licensed fire suppression designer and a representative of the county water department, plaintiff had obtained a permit to install, and had thereafter installed, a fire sprinkler system at the premises, and that, following its installation, the system had been inspected by a fire marshal and a representative of the buildings department and had been certified to go into service. He asserted that, at the time of its installation, the system complied with applicable codes. Rainaldi stated that, in 2008, at defendant's request, plaintiff had repaired an altered pipe and had moved a sprinkler main at the premises, because it was too close to an electrical panel, and that the bill for that work remained unpaid. Rainaldi stated that monthly invoices had been mailed to defendant, and plaintiff introduced into evidence, among other items, plaintiff's job tickets for the work in question, and its invoice for $4,898.81, dated September 15, 2008. Rainaldi indicated that plaintiff had not received a specific objection to its invoice.
In his defense, defendant Charlie Arcadipane argued that, since plaintiff's work had been performed to rectify a hazardous condition which plaintiff had created, plaintiff was not entitled to be paid. He also claimed that he was entitled to recover consequential damages for loss of rent during the time when the repairs had been performed. Defendant asserted that records of the Buildings Department of the Village of Mamaroneck, which he had been unable to obtain, would have established that plaintiff's original work was inadequate. On cross-examination, defendant confirmed that, in the intervening years between plaintiff's installation of the sprinkler main and the finding that it was dangerously located, the premises had been occupied by two different tenants, which had each performed construction work and had thereafter operated restaurants in the premises. At the close of trial, the City Court asked defense counsel to prepare a subpoena duces tecum for the missing records.
The City Court awarded judgment to plaintiff in the principal sum of $4,898.81. In its decision, the court stated that plaintiff had established the fair and reasonable value of its services and an account stated, and that defendant had failed to prove his defense. The court further indicated that following trial it had considered the subpoenaed documents, which, it stated, "fail to establish violations that would require remedial action by defendant." This appeal ensued.
Since it was uncontested that defendant had asked plaintiff to perform the work in issue, that plaintiff had performed the work, and that defendant had failed to pay plaintiff for its work, the City Court properly concluded that plaintiff made out a prima facie case for breach of contract. While it is an affirmative defense that a plaintiff's work was necessitated by the plaintiff's own inadequate performance of a prior job (see A. Palmieri Landscaping v Canoni, 11 Misc 3d 1088[A], 2006 NY Slip Op 50762[U] [Mount Vernon City Ct 2006]), defendant bore the burden of establishing his affirmative defense by a preponderance of the evidence (see 57 NY Jur 2d, Evidence and Witnesses § 165). We find that the evidence at trial supported the City Court's conclusion that defendant had failed to meet that burden. While the court erred in considering the subpoenaed documents, which the litigants had not had an opportunity to rebut or explain (see Razza v Sanchez-Roda, 173 AD2d 594 ), the documents were subpoenaed only for the purpose of buttressing the defense, and, since defendant had failed to prove his defense at trial, we conclude that the court's consideration of those documents, although erroneous, was non-prejudicial.
Plaintiff also proved a prima facie case of an account stated, which defendant failed to refute, by Rainaldi's testimony that plaintiff had sent defendant an invoice, which defendant had retained for a significant amount of time without objection (see Ferraioli v Ferraioli, 8 AD3d 163, 164 ; Fashion Ribbon Co., Inc. v Carnival Creations, Inc., 5 Misc 3d 137[A], 2004 NY Slip Op 51564[U] [App Term, 2d & 11th Jud Dists 2004]).
At trial, defendant stated that he sought to interpose a counterclaim to recover $9,000 for lost rent. However, as the court never responded to defendant's request to interpose a counterclaim, and never referred to any counterclaim in its decision or judgment, we conclude that the City Court never entertained the counterclaim sought by defendant, as it was in excess of the monetary jurisdictional limit of the Commercial Claims Part of the court (see UCCA 1801, 1801-A, 1805-A). To the extent defendant contends that it should have been awarded judgment on its "counterclaim," we note that no counterclaim was properly before the court.
We do not consider defendant's contentions which are based on materials that are dehors the record (see Chimarios v Duhl, 152 AD2d 508 ).
As we find that the award in favor of plaintiff on its cause of action rendered substantial justice between the parties according to the rules and principles of substantive law (UCCA 1807-A), we affirm the judgment.
Nicolai and LaSalle, JJ., concur. LaCava, J.P., taking no part. Decision Date: August 27, 2012
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