*1 Plaintiff commenced this Small Claim on November 15, 2017 claiming $459.00 for damage to a food truck. On December 29, 2017, the Defendant, by and through her attorney, Samuel Frederick, Esq. of Trumansburg, filed a counterclaim for $4,588.75 for abuse of process by procuring Ithaca City Police Department Officers to file a false report and threatening the Defendant with prosecution unless she paid his demand for damages. At the hearing held on February 6, 2018, Plaintiff appeared and testified, and Defendant was represented by Samuel Frederick, Esq. of Trumansburg. Matthew Schweiger from the Ithaca Police Department also testified. Plaintiff’s Exhibits 1 through 14 and 16 through 18 were marked and received into*2
evidence as were Defendant’s Exhibit A through E and G. After evaluation of the evidence, the Court finds and concludes as follows.While attending Ithaca’s Porchfest on September 24, 2017, Defendant, Shoshana Perrey, road her bike to 210 Hancock Street in Ithaca to purchase lunch in the area designated for food trucks. Jeffrey Myers was operating a food truck with his wife, Gabriella’s Farm to Fork. Ms. Perrey intended to try something from the Myers’ food truck after parking her bike. She looked around, and did not see bike racks. She walked her bike around to the back of the Myers’ food truck, and leaned her bike against the trailer. She testified that the handle bars, which are foam wrapped, were the only part of the bike in contact with the truck. Plaintiff, Jeffrey Myers, testified that he was prepping food in the rear window, and saw Ms. Perrey lean her bike. He went outside, and asked her to move the bike. It was his testimony that she pulled the bike off, with an upward motion, leaving a tear in the 3M wrap around the food truck. The parties engaged in a conversation regarding repair of the truck, after which, Ms. Perrey consistently admitted that she thought she was at fault (Plaintiff’s Exhibit 16).Mr. Myers testified that he called the police to report the accident in order to preserve evidence (Defendant’s Exhibit E). Officer Schweiger from the Ithaca Police Department had initially classified the incident as criminal mischief, listing Ms. Perrey as a “suspect” (id). Officer Schweiger explained that the classification had more to do with entering the incident into the IPD computer system, because the incident could not be classified as a motor vehicle accident, but that Mr. Myers did not request that Ms. Perrey be charged with a crime. Officer Schweiger did not observe the incident, nor offer any opinion as to its cause. It appears that Officer Schweiger closed the file on the incident on October 21, 2017, and no charges were filed (Id). Mr. Myers did not establish the size of the ding in the plastic, but he did submit one photograph, Plaintiff’s Exhibit 3, establishing the damage. The Defendant submitted a photograph depicting the ding below the R in Myers (Defendant’s Exhibit A). The Court was able to obtain a photograph of the food truck from an Ithacavoice.com online article, and based on the photograph, it appears that the letter R in Myers is approximately the size of a person’s palm. This would make the ding roughly the size of a quarter.
