SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

960 

CA 11-00079 

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GORSKI, AND MARTOCHE, JJ. 

 

FRANKLIN CORPORATION, PLAINTIFF-APPELLANT, 

V OPINION AND ORDER

JUSTIN M. PRAHLER, DEFENDANT-RESPONDENT, 

ET AL., DEFENDANT. 

 

THE KNOER GROUP, PLLC, BUFFALO (ROBERT E. KNOER OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

MURA & STORM, PLLC, BUFFALO (ERIC T. BORON OF COUNSEL), FOR

DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (Gerald J.

Whalen, J.), entered October 22, 2010. The order, insofar as appealed

from, precluded plaintiff from presenting evidence at trial on the

issue of diminished value and denied plaintiff’s request for a jury

charge on that issue.

It is hereby ORDERED that the order insofar as appealed from is

unanimously reversed on the law without costs. 

Opinion by MARTOCHE, J.: On this appeal, we are presented with an

issue of damages, namely, whether a plaintiff whose personal property

has allegedly increased in value from the time of its purchase is

limited to recovering the cost of repairs to the personal property

after it has been damaged or whether the plaintiff may seek to recover

the diminution in value of the property. Supreme Court agreed with

defendant that plaintiff was precluded from presenting evidence at

trial on the issue of the alleged diminished value of the property

after repairs had been made to it. That was error, and we therefore

conclude that the order insofar as appealed from should be reversed.

FACTS

Plaintiff was the owner of a 2000 Ford GT (hereafter, GT). On

May 28, 2005, the GT was parked on the east side of Franklin Street in

the City of Buffalo. According to plaintiff, the GT “is a rare

collector’s sports car rapidly appreciating in value.” On the day in

question, Justin M. Prahler (defendant) was driving a 1997 Jeep

Cherokee and had consumed several alcoholic beverages. He was legally

intoxicated when he struck and damaged the GT.

Plaintiff asserted, inter alia, a cause of action for negligence
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1

The court granted plaintiff’s motion for summary judgment on the issue

of liability.

per se against defendant, and it sought $52,000 in damages. 

Defendants’ answer is not contained in the record. They subsequently

sought disclosure from plaintiff, and plaintiff responded with several

documents, including a letter from State Farm Insurance (State Farm)

to plaintiff’s counsel advising that, until the vehicle was repaired

and thereafter appraised, State Farm was unable to determine if the

vehicle had diminished in value. Plaintiff also included an estimate

prepared by State Farm indicating that the total cost of repairs for

the vehicle was $3,484.35. Plaintiff disclosed the identity of its

expert appraiser, James T. Sandoro, and it thereafter supplemented its

response and identified Kenneth J. Merusi as another expert appraiser

and Jeff Mucchiarelli as a fact witness. 

The record also includes an excerpt from the deposition of Mark

C. Croce, the president of plaintiff. Croce testified that, as of

March 19, 2009, the GT had not been repaired but that it had been

driven approximately 2,500 miles. Plaintiff filed a note of issue on

August 14, 2009, and the matter was scheduled for trial.

Defendant made a motion in limine pursuant to CPLR 3101 and 3106

seeking to preclude plaintiff’s two expert appraisers from “giving

expert opinion testimony” at the damages trial1 and to preclude

Mucchiarelli from testifying. Defendant’s counsel stated in his

affirmation in support of the motion that the expert disclosure of

Sandoro did not contain the specific information required by CPLR 3101

(d) and that, even if plaintiff had provided a “technically sufficient

response” to the expert disclosure demand, Sandoro should be precluded

from providing expert testimony regarding the market value of the GT

before and after the accident because he lacked the requisite skill,

training, education, knowledge and experience to provide a reliable

market value for the vehicle. Defendant’s counsel further stated that

the other expert witness, Merusi, and the fact witness, Mucchiarelli,

should be precluded from testifying because their identities were

disclosed after plaintiff filed the note of issue and the matter was

ready for trial. In addition, defendant’s counsel further stated that

Merusi was not qualified as an expert. Along with the motion,

defendant submitted an affidavit in support of proposed post-trial

jury charges, requesting that the court charge PJI 2:311, entitled

“Damages—Property with Market Value.” The charge states as follows:

“If plaintiff’s . . . automobile . . . was damaged

by the defendant’s negligence, you will award to

the plaintiff as damages the difference between

its market value immediately before and

immediately after it was damaged, or the

reasonable cost of repairs necessary to restore it

to its former condition, whichever is less.

Thus, if the reasonable cost of repairs
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CA 11-00079 

exceeds the reduction in market value, you will

award the amount by which the market value was

reduced. If the reasonable cost of repairs is

less than the reduction in market value, you will

award to the plaintiff the reasonable cost of

repairs required to restore the . . . automobile .

. . to its condition immediately before it was

damaged.”

In opposition to the motion and in support of its cross motion in

limine, plaintiff submitted the affidavit of its counsel contending

that Sandoro was qualified as an expert and that defendant did not

make any demand for further information or a motion to compel with

regard to Sandoro, nor did he request any further information with

regard to expert disclosure. Plaintiff’s counsel further averred that

Sandoro was a nationally and internationally recognized expert who had

testified in state and federal courts throughout the country regarding

the market value of automobiles. In addition, plaintiff’s counsel

averred that Merusi was qualified as an expert and that plaintiff

voluntarily disclosed Mucchiarelli as a fact witness without any

requirement that it do so. Mucchiarelli would be testifying with

respect to an estimate prepared by an auto repair shop, which was

provided to defendant as part of discovery, and thus defendant was not

prejudiced by the information that was to be the subject of

Mucchiarelli’s testimony. 

Plaintiff also submitted its own proposed post-trial jury

instructions including, as relevant on this appeal, language based on

PJI 1:60:

“In this case the plaintiff claims that it has

suffered damage to its automobile as a result of

the accident caused by the defendant. Plaintiff

further claims that the measure of damages is the

difference between the market value of the vehicle

immediately prior to the accident and the value

after the accident. It is plaintiff’s contention

that even with repairs to return the vehicle to

its pre-loss condition in terms of appearance and

function, this particular vehicle is worth less

after the accident simply because it was involved

in an accident.”

 Plaintiff also submitted a proposed instruction on damages,

including a charge that, 

“[w]here the repairs do not restore the property

to its condition before the accident, the

difference in the market value immediately before

the accident and after the repairs have been made

may be added to the costs of repairs,” 

citing Johnson v Scholz (276 App Div 163, 165). Plaintiff further

requested the following charge:
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CA 11-00079 

“When, as in this case, the property damaged is a

limited edition collector item[,] the plaintiff

may recover the difference in money between the

market value of the property before and after the

damage. In determining the amount of such loss,

you will consider the evidence presented with

respect to: witnesses experienced in the trade of

the specialized market, testimony as to the market

for such property, the distinction in value

between two similar collector items where one has

been damaged and repaired and one that has never

been damaged and repaired, together with all other

evidence presented to establish the value of the

vehicle and the extent of plaintiff’s damage.” 

The court heard argument on the motion and cross motion

immediately before jury selection. In granting the motion, the court

expressed its sympathy for plaintiff’s position, but it concluded that

the case was controlled by the Second Department’s decision in Johnson

and that the

“testimony of repairs is appropriate and testimony

of the value of the car after the repairs are made

-- if there’s a diminution in the value of the car

after the repairs are made -- are the proper

measure of damages to be contemplated by the

finder of fact and specifically not --

specifically not the difference in diminution in

value of the market value of the car, basing the

value of the car before the accident and

immediately after the accident, simply because it

was in an accident . . . .” 

The court further concluded that, because its ruling in favor of

defendant limited the proof and issues at trial, it would issue an

order staying the trial pending consideration of this appeal.

 

DISCUSSION

The issue raised by this appeal is relatively straightforward: 

Whether plaintiff is entitled to a jury charge that will permit the

jury to consider diminution in the value of the GT or whether

plaintiff is limited to recovering the cost of repairs. We conclude

that the court erred in limiting plaintiff’s proof at trial with

respect to the diminution in value of the GT and thus that plaintiff

is entitled to the charges it requested on that issue. 

Preliminarily, we consider an issue not raised by the parties,

namely, the appealability of the order determining the motion and

cross motion. “Generally, an order ruling [on a motion in limine],

even when made in advance of trial on motion papers[,] constitutes, at

best, an advisory opinion [that] is neither appealable as of right nor

by permission” (Innovative Transmission & Engine Co., LLC v Massaro,
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CA 11-00079 

2 That proposition ultimately became the basis for PJI 2:311

and, in support of that proposition (Johnson, 276 App Div at

164), the Second Department cited Hartshorn v Chaddock (135 NY

116), a case from 1892 involving the wrongful obstruction of a

stream that led to the flooding of land and the destruction of

personal property. 

63 AD3d 1506, 1507; see Scalp & Blade v Advest, Inc., 309 AD2d 219,

224). “[A]n order that ‘limits. . .’ the scope of the issues at

trial,” however, is appealable (Scalp & Blade, 309 AD2d at 224). 

Thus, because the court’s order “has a concretely restrictive effect

on the efforts of plaintiff[] to . . . recover certain damages from

[him] . . ., defendant[’s] motion . . . [is] ‘the functional

equivalent of a motion for partial summary judgment dismissing the

complaint insofar as it sought damages . . . in excess of the damages’

that defendant[] believe[s] are appropriate” (id.). 

It is well settled that the purpose of awarding damages in a tort

action is to make the plaintiff whole (see generally Campagnola v

Mulholland, Minion & Roe, 76 NY2d 38, 42). Here, the court relied

heavily on the Second Department’s decision in Johnson. In that case,

the plaintiff’s vehicle, which was being operated by the defendant,

was damaged in an accident (Johnson, 276 App Div at 164). The

plaintiff testified at trial that, prior to the accident, the value of

the vehicle was between $1,750 and $2,000 and that, after the

accident, its value was between $500 and $700. The defendant

testified that, prior to the accident, the value of the vehicle was

$1,600 and that, after the accident, its value was $1,000. Both

parties in Johnson were in the used car business and presumably

competent to testify concerning the value of the vehicle. The

plaintiff also provided the testimony of an expert who opined that the

fair and reasonable value of making the necessary repairs was $600,

while the defendant’s expert testified that the repairs were $419.40. 

Additionally, there was evidence that it would take three weeks to

make the repairs, and the defendant conceded that the reasonable

rental value for the use of such an automobile was $9 per day. The

trial court in Johnson awarded the plaintiff $1,050, apparently based

on the difference between the value of the automobile before and after

the accident, inasmuch as the plaintiff’s lowest estimate of value

before the accident was $1,750 and his highest estimated value after

the accident was $700.

The Second Department in Johnson stated that the “measure of

damages for injury to property resulting from negligence is the

difference in the market value immediately before and immediately

after the accident, or the reasonable costs of repairs necessary to

restore it to its former condition, whichever is the lesser” (id.).2

The Court concluded that the difference in market value immediately

before and immediately after the accident was $1,050 and that the

reasonable costs of repairs to restore it to its former condition was

$600 and the loss of use was $189. Thus, the recovery was limited to

$789. The Court further stated that,
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CA 11-00079 

“[w]here the repairs do not restore the property

to its condition before the accident, the

difference in market value immediately before the

accident and after the repairs have been made may

be added to the cost of repairs. But in

[Johnson,] there is no claim that the automobile

could not be fully restored to its former

condition by the repairs contemplated in the

estimate” (id. at 165). 

Rather, the only basis for the plaintiff’s claim was that “the resale

value would be diminished because the car had been in an accident”

(id.). The Court stated that “the diminution in resale value [was]

not to be taken into account if the repairs would place the car in the

same condition it was before the accident” (id.). 

Although here the court believed that it was constrained by the

decision in Johnson, we conclude that there was no evidence that the

automobile in Johnson had appreciated in value from the time of its

purchase, as plaintiff contends in this case. The automobile here is

more akin to the violin in Schalscha v Third Ave. R.R. Co. (19 Misc

141). In that case, the plaintiff’s violin was damaged by the

negligence of the defendant, and the court concluded that the

plaintiff could recover not only the cost to repair the violin but

also its depreciation in value (id. at 142-143). Here, plaintiff

submitted evidence that, even if the GT was fully repaired, the mere

fact that it had been in an accident had diminished its market value

by $40,000 because it would no longer be in its “original factory

condition.”

The weight of authority supports our conclusion that plaintiff is

entitled to a charge that it may recover the diminution in value of

the vehicle. Restatement of Torts § 928, entitled “Harm [t]o

[C]hattels” and followed by the majority of jurisdictions, provides

that,

“[w]here a person is entitled to a judgment for

harm to chattels not amounting to a total

destruction in value, the damages include

compensation for

(a) the difference between the value of the

chattel before the harm and the value after the

harm or, at the plaintiff’s election, the

reasonable cost of repair or restoration where

feasible, with due allowance for any difference

between the original value and the value after

repairs, and

(b) the loss of use.”

Numerous courts have followed Restatement of Torts § 928 and have

concluded that a plaintiff may recover the reduction in value after

repairs are made (see e.g. American Serv. Ctr. Assoc. v Helton, 867
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CA 11-00079 

A2d 235, 243-244, 244 n 12 [DC Cir]; Brennen v Aston, 84 P3d 99, 102

[Okla]). Other jurisdictions allow for diminution of market value or

the cost of repairs, but not both (see e.g. Meredith GMC, Inc. v

Garner, 78 Wyo 396, 404-405, 328 P2d 371, 374; Adams v Hazel, 48 Del.

301, 303-304, 102 A2d 919, 920).

Here, plaintiff requested that the jury consider the diminution

in value only and not the cost to repair the vehicle, and we note that

the vehicle apparently has not yet been repaired. The court followed

the holding in Johnson, which, as we noted above, apparently served as

the basis for PJI 2:311, the charge that defendant sought here. That

charge provides that the plaintiff will be entitled to the difference

between the market value of the property immediately before and

immediately after the property was damaged or the reasonable cost of

repairs to restore the property to its former condition, whichever is

less. The other cases cited in support of the charge in the Comment

to PJI 2:311 are not directly apposite. For example, the first case

cited therein, Fisher v Qualico Contr. Corp. (98 NY2d 534, 536-537),

involves losses to the plaintiff’s home as a result of fire and the

issue of collateral source payments and setoffs under former CPLR 4545

(c). The underlying purpose of that statute is to eliminate windfalls

and duplicative recoveries (see Fisher, 98 NY2d at 537). Similarly,

in another Court of Appeals case cited in the Comment to PJI 2:311,

Gass v Agate Ice Cream, Inc. (264 NY 141, 143-144), the plaintiff was

not allowed to recover the cost of repairs to his vehicle where the

cost of repairs exceeded the value of the vehicle at the time of the

accident. Again, the Court’s conclusion was based upon the notion

that a plaintiff is not entitled to a windfall (see id.).

Conversely, there can be no doubt that, under a general theory of

damages, a plaintiff is entitled to be made whole. The situation

presented here is somewhat unusual in that the GT has allegedly

increased in value since the time of purchase, unlike most motor

vehicles that would have diminished in value from the time of purchase

to the time of the accident. Where a vehicle, like any other piece of

personal property, has increased in value and is subsequently damaged

by the negligence of the defendant, the plaintiff should be entitled

to recover the cost of that diminution in value. Otherwise, the

plaintiff will not be made whole. In our view, PJI 2:311 was intended

to cover the situation in Gass (264 NY at 143-144), where personal

property has depreciated from its original market value and is then

damaged by the negligence of the defendant. The plaintiff in such a

case will be entitled to recover the costs of repairs or the

diminution in value, whichever is less.

CONCLUSION

Under the circumstances presented herein, plaintiff is entitled

to the charges sought. Accordingly, we conclude that the order

insofar as appealed from should be reversed. 

Entered: November 10, 2011 Patricia L. Morgan

Clerk of the Court