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ESPERANZA DIAZ, plf-app, v. MICHAEL POWELL D/B/A DAYSTAR TAX SERVICE, def-res

13-461. ESPERANZA DIAZ, plf-app, v. MICHAEL POWELL D/B/A DAYSTAR TAX SERVICE, def-res — Judgment (Gerald Lebovits, J.), entered on or about February 19, 2013, reversed, without costs, and new trial ordered.

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13-461. ESPERANZA DIAZ, plf-app, v. MICHAEL POWELL D/B/A DAYSTAR TAX SERVICE, def-res — Judgment (Gerald Lebovits, J.), entered on or about February 19, 2013, reversed, without costs, and new trial ordered.

The small claims action, seeking damages for “defective services rendered,” is based on allegations that the defendant tax preparer failed to timely file plaintiff’s New York State tax returns for a period of years, causing her to incur interest and penalties. Unfortunately, the relevant documents bearing on that issue, while shown to the trial court, were not marked as exhibits or introduced into evidence at trial, and thus are not included in the record on appeal. “In this posture, where the proffered [documents] bore directly on the key factual issues in the litigation and the absence of the [documents] from the record precludes effective appellant review, we are constrained to order a new trial” (Dyce v. Singer, 40 Misc 3d 12, 13 [2013]).

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