Defendant hit plaintiff’s car, acknowledged fault and paid for the repairs. However, plaintiff says that this is not enough. As a result of the accident, she claims that her car’s resale value has been diminished. That is, the mere fact that her car has suffered damages in the past (though repaired) reduces the car’s resale value. Plaintiff commenced this action under Uniform City Court Act §1802 to recover the lost resale value of her vehicle.At trial, Plaintiff presented documentary evidence to prove the truth of her claim. The evidence demonstrated that her car’s resale value has been reduced by 20 percent -25 percent because of the accident. Defendant does not dispute that the resale value of the plaintiff’s car has been diminished. Rather, defendant argues that plaintiff is entitled to repair costs or the diminished value whichever is less.Defendant is correct about this much — a plaintiff is entitled to the difference in the market value immediately before and immediately after the accident, or the reasonable cost of repairs necessary to restore it to its former condition, whichever is the lesser (Johnson v. Scholz, 276 AD 163, 164 [2d Dept 1949]; Hartshorn v. Chaddock, 135 NY 116, 122 [1892]). This ancient rule is derived from common sense. If a plaintiff has an old car that is valued at $500 before an accident and the cost of repairs to restore the car is $1,000, it makes no sense to award plaintiff the cost of repairs. The plaintiff could buy two $500 cars if awarded repair costs. In other words, $500 makes the plaintiff whole — it represents the total and complete value of her loss which is the objective of tort damages. “In a tort case, compensatory damages, whether general or special, serve to make good, so far as it is possible to do so in dollars and cents, the harm done by a wrongdoer” (Lopez v. Adams, 69 AD3d 1162, 1167-68 [3d Dept 2010] [internal quotation marks and citations omitted]).But of course, that is not the situation here. In this case, the cost of repairs does not make plaintiff whole in terms of “dollars and cents” (Id). Her car’s resale value has decreased not because of physical damages sustained in the accident, but by the occurrence of the accident itself. That is, cars are worth less to buyers not because of unrepaired damage but because of the stigma of the vehicle having been involved in a prior accident. So, the rule that defendant advances in this case is misplaced. This is not a case where plaintiff would receive a windfall if awarded damages for the loss in resale value of her car.To support its defense, defendant cites a case strikingly similar to this one, Delamater v. Fisher, 47 Misc 3d 592 (Albany City Ct 2015). In Delamater, defendant hit plaintiff’s car and paid for the repairs. However, the plaintiff, like the plaintiff in this case, wanted damages for the loss in the resale value of his car due to its association with an accident. The Albany City Court refused to accept an assertion of such loss value “[i]n the absence of factual proof” and thus, dismissed the claim (Id. at 594). Although, to be fair, the court seemed dubious of the proposition that diminished resale value damages could have been recovered even if plaintiff had offered proof of such damages (Id. at 593-94).At least with respect to the proof presented at trial, this case is distinguishable from Delamater. Information technology has made markets for used cars more transparent. Indeed, businesses have been created that report to consumers if a used car has been in an accident. As a result, prices of used cars will vary not only based upon mileage and age, but also on prior accident status. Here, plaintiff has provided a report together with other credible evidence of diminished resale value of her vehicle and that evidence was uncontested. That the resale value of plaintiff’s car has diminished is not conjecture, the loss is actual and measurable. Thus, the court finds Delamater inapplicable to the issue before it.Defendant’s strongest authority comes from the Second Department. The Second Department has unequivocally held that, in a case like this, a tort victim cannot recover the diminished resale value of her car caused solely by the fact that it was in an accident. In Parkoff v. Stavsky, 109 AD3d 646, 648 (2d Dept 2013), the court concluded that “where there is no dispute that the repairs fully restored the vehicle to its condition before the accident, and the only basis of the claim made by the plaintiff for the difference in value immediately before and immediately after the accident is [that] the resale value would be diminished because the car had been in an accident, the diminution in resale value is not to be taken into account.” But it is hard to see why not — the Parkoff rule appears to be at odds with the very reason for tort damages. Tort damages are awarded “to restore the injured party to the position that would have been occupied had the wrong not occurred” (McDougald v. Garber, 73 NY2d 246, 254 [1989]). It is difficult to square not awarding the loss of resale value (which was caused by the wrongdoer) with the bedrock principle that a wrongdoer cannot escape from paying the full measure of restitution to her victim (Sharapata v. Town of Islip, 56 NY2d 332, 335 [1982]).However, the court, despite its simmering doubts about the logic of the Second Department’s rule in Parkoff, may well be bound by the decision. While this court resides within the Third Department, it is well established that “[t]he Appellate Division is a single statewide court divided into departments for administrative convenience and, therefore, the doctrine of stare decisis requires trial courts [of one] department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule” (Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663, 664 [2d Dept 1984]).So, the question is whether the Third Department has adopted a contrary rule on diminished resale value. The lead case from the Third Department is Mendleson v. Van Rensselaer, 118 AD 516 (3d Dept 1907). In Mendleson a carriage, smashed in an accident, had been fully repaired (Id. at 517). Nevertheless, plaintiff sought to recover, in addition to the cost of repairs, the difference between its value of the carriage before the accident and after it had been repaired, upon the theory that “a wagon that had gone through an accident would not sell for as much as it otherwise would” (Id. at 518). In disposing of this contention, the court stated: “As to the carriage, aside from the repairs, the alleged damage was purely fanciful and not worthy of consideration” (Id.).A substantial question exists whether “fanciful” means that the carriage owner had no case as a matter of fact (i.e., his claim lacked evidence and therefore his claim was fanciful) or as a matter of law (i.e., the very notion that a tort victim could recover such damages was fanciful). Two courts have reached opposite conclusions on this question (compare Rosenfield v. Choberka, 140 Misc 2d 9, 13 [Sup Ct, Broome County 1988] [holding that where the evidence establish that a car's resale value has been reduced because of a prior accident, an award of damages on that basis is not "purely fanciful") with Delamater, 47 Misc 3d at 595 [noting that "there is no legal basis" for plaintiff to recover diminished resale value damages in light of Mendleson] [emphasis added]).The court will avoid resolving this question because plaintiff has a timing problem. Plaintiff seeks to recover the loss in her vehicle’s resale value. But plaintiff has not yet sold her car and consequently, she has not yet realized any damages from a nonexistent sale. It is true that at trial plaintiff established that her vehicle’s resale value will be reduced by 20 percent because it was in an accident. However, the exact dollars and cents loss in resale value can only be determined based upon the price for which the car is sold. This is because a car’s dollar value (i.e., price) is not static, it depreciates with time and use and so likewise does 20 percent of its price.1The court cannot begin to guess when plaintiff will sell her car and what the price of her car will be at some unknown time. Indeed, “[t]he court is left to speculate as to the amount of the damages [and] no award can be made based on speculation” (Hamilton v. Bosko, 54 Misc 3d 386, 389 [Cohoes City Ct 2016]). When plaintiff has suffered a definite loss in terms of dollars and cents, she may re-file her case. Therefore, plaintiff’s case is dismissed without prejudice.The foregoing constitutes the Decision and Order of the Court.Dated: April 5, 2019Cohoes, New York
