State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 28, 2016 521330 

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MARC YANNI et al.,

Respondents,

v MEMORANDUM AND ORDER

ROBERT BECK,

Appellant.

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Calendar Date: March 24, 2016

Before: McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.

__________

Baynes Law Firm, PLLC (Brendan F. Baynes of counsel),

Ravena, for appellant.

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McCarthy, J.P.

Appeal from an order of the County Court of Albany County

(Lynch, J.), entered September 8, 2014, which, among other

things, remitted the matter to the Justice Court of the Town of

Bethlehem for an inquest on damages.

Plaintiffs commenced this small claims action seeking to

recover damages as the result of allegedly defective repair work

to their roof by defendant. Following a trial, the Justice Court

of the Town of Bethlehem found in favor of plaintiffs and awarded

$1,970 in damages. On appeal, County Court determined that there

was evidence to permit a finding that defendant was liable to

plaintiffs, but that plaintiffs had failed to submit either an

itemized paid bill or two itemized estimates to establish the

reasonable value and necessity of the work in support of their

claim (see UJCA 1804). In light of this determination, County

Court ordered that the matter be remitted to Justice Court for an

inquest solely on damages. Defendant now appeals.
-2- 521330 

"The standard of review in small claims cases is limited to

whether 'substantial justice has . . . been done between the

parties according to the rules and principles of substantive

law'" (Moses v Randolph, 236 AD2d 706, 707 [1997], quoting UJCA

1807). "Applying this standard, we will overturn a decision only

if it is clearly erroneous" (Stein v Anderson, 123 AD3d 1322,

1322 [2014] [citation omitted]; see Mullen v Lockwood, 129 AD3d

1269, 1270 [2015], lv dismissed 26 NY3d 992 [2015]; Kelsey v

McNally, 77 AD3d 1230, 1231 [2010], lv dismissed 16 NY3d 853

[2011]). Pursuant to UJCA 1804, the reasonable value and

necessity of repairs may be established by "[a]n itemized bill or

invoice, receipted or marked paid, or two itemized estimates for

services or repairs" (see Mullen v Lockwood, 129 AD3d at 1271;

Borman v Purvis, 299 AD2d 615, 617 [2002]). Here, the record

reflects that plaintiffs only submitted one estimate in support

of their claim, and they therefore submitted insufficient

evidence, as a matter of law, to establish damages. Accordingly,

we agree with County Court that Justice Court's decision was

clearly erroneous (see UJCA 1804; Borman v Purvis, 299 AD2d at

617). However, substantive justice cannot permit plaintiffs a

second opportunity to prove their damages merely because they

failed to meet their prima facie burden in the first instance,

and therefore we do not remit the matter (see Redner v Church of

the Nazarene, 4 Misc 3d 126[A], 2004 NY Slip Op 50583[U] [2014];

Capalbo v Lake Serv. Stat., Inc., 2002 NY Slip Op 40249[U], *2

[2002]). 

Egan Jr., Rose, Devine and Clark, JJ., concur.

ORDERED that the order is reversed, without costs, and

action dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court