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Samuel Benzev v. Super Express Service

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


October 5, 2012

SAMUEL BENZEV,
APPELLANT,
v.
SUPER EXPRESS SERVICE, INC.,
RESPONDENT.

Appeal from a judgment of the District Court of Nassau County, Second District (Eugene Shifrin, Ct. Atty. Ref.), entered April 6, 2011.

Benzev v Super Express Serv., Inc.

Decided on October 5, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: IANNACCI, J.P., MOLIA and LaCAVA, JJ

The judgment, after a non-jury trial, dismissed the action.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the District Court for a new trial before a different judge or referee.

Plaintiff commenced this small claims action to recover the sum of $1,644, alleging that defendant had overcharged him for moving services performed on a Nassau County Sheriff's eviction of plaintiff's tenant. After a non-jury trial, the court attorney referee found in favor of defendant, and a judgment was entered dismissing the action.

Upon a review of the record, we find that substantial justice has not been done between the parties according to the rules and principles of substantive law (see UDCA 1807). Plaintiff testified that he was charged more than the Probable Cost of Services contract, entered into by the parties, and thus was entitled to the return of the sum of $1,644. Defendant testified that the Probable Cost of Services contract was only an estimate of the expenses for the eviction move, and that the nature of an eviction move involves uncertainties that make it hard to accurately estimate the cost in advance. However, defendant's own exhibit entitled "Breakdown of Charges" and the Probable Cost of Services contract show a price disparity in the charge per box used in the move, the amount of which should have been fixed considering that it does not involve any uncertainties. The estimation of charges arises from the inability to determine the quantity that needs to be moved to storage and how long it will take, not the fixed price per box. Therefore, the price disparity between the Probable Cost of Services contract and the Breakdown of Charges suggests that defendant overcharged plaintiff regarding the price per box.

Moreover, the record reveals that plaintiff was not given an opportunity to cross-examine defendant. Although the procedure in the Small Claims Part is relaxed (UDCA 1804), a party's right to cross-examine witnesses should not be abridged.

Accordingly, the judgment is reversed and a new trial ordered before a different judge or referee.

Iannacci, J.P., Molia and LaCava, JJ., concur. Decision Date: October 05, 2012

20121005

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