Opinion
2003-164 RI C.
Decided December 10, 2003.
Appeal by defendant from a small claims judgment of the Civil Court, Richmond County (B. Panepinto, J.), entered September 17, 2002, in favor of plaintiff in the sum of $1,421.38.
Judgment unanimously modified by reducing the amount awarded to plaintiff to the sum of $1,043.38; as so modified, affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
In this small claims action to recover a security deposit, defendant counterclaimed for property damage and testified at trial that the floors in the bedroom of the subject apartment were ruined. At trial, defendant submitted into evidence one itemized estimate for the sum of $1,028.38 representing the cost to refinish the floor as well as one bill for the sum of $394.54, which was neither receipted nor marked paid, representing the cost of new floor tiles. The lower court awarded defendant a setoff for the cost of replacing the floor tiles but denied defendant's claim for the cost to refinish the floor. CCA 1804 provides in pertinent part that "[a]n itemized bill or invoice, receipted or marked paid, or two itemized estimates for services or repairs, are admissible in evidence and are prima facie evidence of the reasonable value and necessity of such services and repairs." Thus, the aforementioned evidence proffered by defendant at trial was insufficient to establish his damages for the cost to refinish the floors and, as such, substantial justice was done between the parties in accordance with the rules and principles of substantive law (CCA 1807). Inasmuch as plaintiff has not cross-appealed, we do not pass upon the propriety of the setoff for the cost to replace the floor tiles.
We note that this court cannot consider matters dehors the record ( see Chimarios v. Duhi, 152 AD2d 508). Furthermore, we are of the opinion that the lower court improvidently exercised its discretion in awarding plaintiff prejudgment interest. Thus, the judgment should be modified accordingly.