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Vojtek Construction, Inc., Respondent v. Steven Sippin and Tammy Sippin

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


March 29, 2013

VOJTEK CONSTRUCTION, INC., RESPONDENT, --
v.
STEVEN SIPPIN AND TAMMY SIPPIN, APPELLANTS.

Appeal from a judgment of the District Court of Nassau County, Fourth District (Eugene H. Shifrin, Ct. Atty. Ref.), entered February 16, 2011.

Vojtek Constr., Inc. v Sippin

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 29, 2013

PRESENT: NICOLAI, P.J., IANNACCI and LaSALLE, JJ

The judgment, after a non-jury trial, awarded plaintiff the principal sum of $4,000.

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

On March 30, 2010, the parties entered into a written agreement -- a standard form agreement promulgated by the American Institute of Architects (AIA) -- for the repair and renovation of defendants' home. That agreement was amended by a written agreement dated May 6, 2010. Plaintiff claims that, in addition to the foregoing written agreements, the parties, during the course of the work, orally agreed that plaintiff would perform additional work for defendants, including the installation of a brick fence at the property and the installation of a speaker system in the living room, kitchen and family room of defendants' home. When plaintiff was not paid by defendants for the additional work performed, plaintiff's owner, Wojciech Napieralski, commenced this small claims action seeking, among other things, $3,500 for the installation of the fence and $950 for the installation of the speaker system. After a non-jury trial, the caption was amended to reflect that Mr. Napieralski's corporation, Vojtek Construction, Inc., was the appropriate plaintiff, thereby converting the small claims action into a commercial claims action (see UDCA 1801-A). Plaintiff was awarded judgment in the principal sum of $4,000.

We agree with defendants' contention that a new trial is required. During the course of the trial, the referee expressed his dislike for the particular AIA contract entered into by the parties, suggesting that, since the contract had an arbitration provision, defendants would have been in a more advantageous position had they arbitrated their dispute. In addition, the record reflects that defendants were not permitted an opportunity to cross-examine plaintiff's witness, as was their right pursuant to substantive law (see UDCA 1804-A; Rizopoulos v Cartelli, 4 Misc 3d 127[A], 2004 NY Slip Op 50619[U] [App Term, 9th & 10th Jud Dists 2004]).

In view of the foregoing, the judgment is reversed and the matter is remitted to the District Court for a trial before a judge or a different court attorney referee.

Nicolai, P.J., Iannacci and LaSalle, JJ. Decision Date: March 29, 2013

20130329

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