Opinion
No. 2013–2048 N C.
02-24-2015
Anthony PETITO, Respondent, v. GARDEN CITY JEEP CHRYSLER DODGE, LLC, Appellant.
Opinion
ORDERED that the judgment is modified by reducing the award to plaintiff to the principal sum of $2,650; as so modified, the judgment is affirmed, without costs.
In this small claims action, plaintiff seeks to recover the sum of $2,800 for damage to his driveway caused by defendant. After a nonjury trial, the District Court awarded plaintiff the principal sum of $2,725, representing the averaged cost of repair based on two estimates submitted into evidence by plaintiff.
Pursuant to UDCA 1804, plaintiff submitted one estimate from each of two contractors, in the amounts of $2,800 and $2,650, respectively, to establish the reasonable cost and necessity of repairing his entire driveway. Defendant failed to establish that a lesser measure of damages than the cost of the itemized repairs, as established by these estimates, would sufficiently compensate plaintiff for his loss (see Jenkins v. Etlinger, 55 N.Y.2d 35, 39 [1982] ; Barron v. Dube, 48 AD3d 1059 [2008] ). However, substantial justice (UDCA 1807 ) requires that the award in favor of plaintiff should properly have been limited to the amount of the lower estimate. Accordingly, the judgment is modified by reducing the amount awarded to plaintiff to the principal sum of $2,650.
MARANO, P.J., IANNACCI and TOLBERT, JJ., concur.