By: Garguilo, P.J., Walsh, Goldberg-Velazquez, JJ. Wenig Saltiel, LLP (Dan M. Blumenthal of counsel), for appellants. Guy Mammoliti, respondent pro se.
2022-369 N C. MAMMOLITI v. ROBERTSON — Appeal from a judgment of the District Court of Nassau County, Second District (David I. Levine, J.), entered April 12, 2022. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $5,000. ORDERED that the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $110; as so modified, the judgment is affirmed, without costs. Plaintiff commenced this small claims action to recover the principal sum of $5,000, alleging that defendants had failed to repair the damage they caused to his 2002 Harley-Davidson motorcycle while it was in defendants’ shop for servicing. At a nonjury trial, plaintiff testified that his motorcycle sustained major damage when it fell off a lift at defendants’ shop. After defendants repaired the resulting damages as best as they claimed they could, plaintiff brought the motorcycle to a Harley-Davidson dealership for an inspection. Plaintiff introduced a “walk around inspection” report from Harley-Davidson, which noted oil leaking in the front motor, as well as some other damage. The report did not contain estimates for the cost of repairs or the value of the motorcycle. Defendant Ray Robertson, the sole shareholder of the corporate defendant, testified that, after causing damage to plaintiff’s motorcycle, he repaired it all except for a broken windshield and some scratches. The manufacturer of the windshield was closed down due to COVID-19, so Mr. Robertson compensated plaintiff by tendering him a check in the sum of $110, representing what he alleged was the cost of the windshield. Plaintiff testified that he never cashed this check and it was submitted with plaintiff’s exhibits at the time of trial. Following the trial, the District Court entered a judgment in favor of plaintiff in the principal sum of $5,000. In a small claims action, our review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law” (UDCA 1807; see UDCA 1804; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125 [2000]). While plaintiff established liability, here the District Court improperly accepted plaintiff’s unsubstantiated claim that the motorcycle was a total loss. Consequently, the District Court’s award of $5,000 cannot be sustained. Pursuant to UDCA 1804, the submission of an itemized bill or invoice, receipted or marked paid, or two itemized estimates, is prima facie evidence of the reasonable value and necessity of repairs (see Hindi v. Wajngurt-Levy, 68 Misc 3d 128[A], 2020 NY Slip Op 50939[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). “To establish damages for the loss of personal property, there must be some testimony as to the property’s value by the owner or someone familiar with the property’s quality and condition, such as its original cost, age and condition at the time of the loss” (Charles v. Boland, 57 Misc 3d 150[A], 2017 NY Slip Op 51524[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] [citations, internal quotation marks and brackets omitted]). Plaintiff’s main basis for his damages claim is that Harley-Davidson allegedly deemed the motorcycle unsafe to ride, as set forth in its “walk around inspection” report. However, the report does not support this proposition, either explicitly or implicitly. We note that the report failed to even provide the value of the motorcycle or to estimate the cost of any repairs that were needed. Plaintiff failed to submit any specific proof to establish his damages. However, as defendant Robertson conceded that plaintiff was entitled to $110 representing what Robertson stated was the value of the windshield that could not be replaced, we find that substantial justice (see UDCA 1804, 1805) requires that the award be reduced to that sum. We do not consider defendants’ argument that the District Court erred in holding Mr. Robertson personally liable for the action of the corporate defendant as this contention was raised for the first time on appeal (see Joe v. Upper Room Ministries, Inc., 88 AD3d 963 [2011]). In any event, this argument has no merit as Mr. Robertson was not held liable in his capacity as a corporate shareholder, but as the principal tortfeasor (see North Shore Architectural Stone, Inc. v. American Artisan Constr., Inc., 153 AD3d 1420, 1422 [2017]). Accordingly, the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $110. GARGUILO, P.J., WALSH and GOLDBERG-VELAZQUEZ, JJ., concur. October 17, 2024
