Opinion
SC 413-17
03-23-2018
John Libutti, Jr., Plaintiff, v. Peter Luizzi & Bros Contracting, Inc. and City of Albany, Defendants.
John Libutti, Jr. Plaintiff, pro se [redacted] Menands, NY 12204 Matthew Cramer, Esq. Attorney for Defendants 634 Plank Road, Suite 203 Clifton Park, New York 12065
John Libutti, Jr. Plaintiff, pro se [redacted] Menands, NY 12204 Matthew Cramer, Esq. Attorney for Defendants 634 Plank Road, Suite 203 Clifton Park, New York 12065 Helena Heath, J.
Plaintiff brought the instant small claims action to recover damages caused to his car allegedly due to the operation of machinery by defendant Peter Luizzi & Bros Contracting, Inc. (hereinafter referred to as "defendant company"), a company hired by defendant City of Albany (hereinafter referred to as the "City"). The parties appeared for trial on December 15, 2017, and the trial was continued and concluded on February 9, 2018. The Court reserved decision and, after fully considering the testimony and documentary evidence presented at trial and applicable legal standards, the Court makes the following findings of fact and decision of law:
Uniform City Court Act § 1804 sets forth the procedure to be followed when conducting a small claims trial. The Court is required to do substantial justice between the parties according to the rules of substantive law and is not bound by statutory provisions or rules of practice, procedure, pleading or evidence. (U.C.C.A. § 1804; see also Blair v. Five Points Shopping Plaza, Inc., 51 AD2d 167 [Third Dept 1976]). Accordingly, the Court is given wide latitude and discretion in the conduct of small claims trials (Buonomo v Stalker, 40 AD2d 733 [Third Dept 1972]).
Plaintiff testified that on May 12, 2017 at approximately 8:45 AM, he parked his car "at the intersection of Ten Broeck Place and Ten Broeck Street, on the west side of Ten Broeck Street". Plaintiff further testified that a front loader machine was parked behind him when he parked his car at that time and location. According to plaintiff, when he returned to his car on that same day at approximately 5:26 PM, he did not notice at that time that the back of his car had been damaged. He testified that he preceded to drive straight home, and it was when he was leaving his house to go for a bicycle ride soon after arriving home that he noticed damage to the back of his car for the first time at approximately 6:16 PM on May 12, 2017. Upon seeing the damage, plaintiff testified that he drove back to the place where he had parked his car earlier and arrived back at that site at approximately 6:24 PM.
When plaintiff arrived back at the site, he testified that he saw and spoke to someone who plaintiff identified as an employee of defendant company. According to plaintiff, he told that person about the damage done to his car which plaintiff believed was caused by the subject front loader that was parked behind plaintiff's car on the west side of Ten Broeck Street earlier on May 12th. Plaintiff stated that he when returned to the site where his car had been parked, the subject front loader was still parked there in the same position, and it was at that time that he took photographs (Plaintiff Exh 2 [multiple photographs]). Plaintiff further testified he ultimately concluded that the subject front loader was owned by defendant company based on the identifying information on the front loader, information which is depicted in a photograph plaintiff submitted at trial (Plaintiff Exh 2C). This conclusion was not disputed at trial.
In support of plaintiff's claim that the damage to his car was caused by defendant company's front loader, he argued that the "front loader's fingerprints" were on the back of his car. Specifically, plaintiff testified that the lines and shape of the front loader's shovel could be seen on the back of his car as depicted in some of the photographs submitted into evidence at trial (Plaintiff Exh 2E-2I). According to plaintiff, the depth of the indent on the back of his car was consistent with the contours of the front loader's shovel. Additionally, plaintiff argued that the consistency and color of the mud and dirt mixture present on the front loader's shovel on May 12, 2017 matched the mud and dirt mixture plaintiff discovered was on his car at the alleged point of impact of the subject car damage. Plaintiff also submitted photographs of the front loader which he testified were taken a few days after the incident (Plaintiff Exhs 6, 7, 8A and 8B), and he argued those photographs showed that the shovel of the front loader at issue could be raised to a height that matched up to the location of impact on plaintiff's car.
On cross examination, plaintiff acknowledged that he did not witness the incident. As highlighted during the cross examination of plaintiff, of the photographs plaintiff submitted depicting the subject front loader parked on the day of the incident, the shovel of the front loader was depicted in a lowered position on that day which was not consistent with the front loader's alleged point of impact with plaintiff's car. In his closing statement, defendants' attorney argued that plaintiff only presented circumstantial evidence of how the accident occurred and that the damage could have been pre-existing.
Joseph Miskewicz testified as a witness on behalf of defendants. He testified that he was currently employed with defendant company and that the company contracted with the City to redo the sidewalks in the area of Ten Broeck Street as well as in other areas in the City of Albany. Mr. Miskewicz acknowledged that plaintiff had contacted defendant company and claimed that plaintiff's car was damaged by defendant company's front loader. According to Mr. Miskewicz, no employees of defendant company reported that they had any contact with any vehicle while operating machinery on May 12, 2017 at the subject location. On cross examination, Mr. Miskewicz stated that the operator of the subject front loader was not currently employed by defendant company. That operator did not testify at the trial and, thus, the Court could not make a credibility determination as to the truthfulness of the operator's alleged denial that he caused damage to plaintiff's car. During cross examination, Mr. Miskewicz testified that a female employee of defendant company named Logan had reported that she was approached by a man at the subject construction site who claimed that his vehicle had been damaged by defendant company.
According to Mr. Miskewicz, in seeking to have a no parking zone established when performing sidewalk and street renovation work for the City, defendant company was required to submit to the City (72 hours in advance) its written request to have the City post Emergency No Parking signage at the specified location where the work is to be performed. Mr. Miskewicz testified that to the best of his knowledge there was a No Parking Sign posted on the west side of Ten Broeck Street on May 12, 2017. He testified that he sent an email to the City's Traffic Engineer William Trudeau on May 2, 2017 along with an emergency no parking request form (Defendants Exh B) requesting that there be Emergency No Parking signs posted on "Ten Broeck Street (West Side)" in between the "cross streets" of "Livingston Ave to 2nd Street" on the dates of "5/11/17 - 5/17/17" during "6:00 AM - 3:30 PM". Defendants' Exhibit B also demonstrated that an additional request form had been submitted to the City by Mr. Miskewicz on behalf of defendant company requesting Emergency No Parking signs be posted on May 8, 2017 through May 10, 2017 from 6 AM to 3:30 PM on "Ten Broeck Street (East Side/Odd No.'s)" between the cross streets of "2nd Street to Clinton Ave".
Of the testimony elicited at trial, the Court finds significant that in response to being asked the question was there a No Parking sign present on the date of the alleged accident on May 12th, Mr. Miskewicz testified that "there was a request, I don't know if there were signs". In fact, no witness on behalf of defendants was called to testify to establish that the Emergency No Parking signage requested by defendant company prohibiting parking on May 12, 2018 at the subject incident location was in fact posted by the City. This factual premise is key to the Court's determination in this case. If plaintiff had parked his car in a no parking zone on the day of the incident, no liability would lie against defendants for the subject car damage.
A trial court has the opportunity to hear witnesses and observe their demeanor during testimony and to weigh the evidence, and as the trier of fact in small claims cases this Court must make credibility determinations regarding the parties' testimony and the evidence presented (Ransom v Spacc, 57 Misc 3d 259 [City Ct., Chautauqua County, 2017]). After assessing the credibility factors, the Court is required to make a determination that does substantial justice between the parties based upon the rules and principles of substantive law (Rowe v Silver & Gold Expressions, 107 AD3d 1090 [Third Dept 2013]).
The Court credits plaintiff's testimony that on May 12, 2017 at approximately 8:45 in the morning plaintiff parked his car on the west side of Ten Broeck Street near the intersection of Ten Broeck Place and Ten Broeck Street. The photograph plaintiff presented at trial to show the no parking sign that was posted on that date and time adjacent to where he parked his car, in the Court's view, does depict a securely fastened Emergency No Parking sign posted, which reads in relevant part: "Emergency No Parking" for the "Time 7 AM" on the "Date 5-8-17" until the "Time 4 PM" on the "Date 5-10-17", for the "Location Ten Broeck Street" (Plaintiff Exh 2B). This Emergency No Parking sign depicted in Plaintiff's Exhibit 2B contained the additional information of "W/S Second To Livingston" (the Court notes that the size of the handwritten lettering of the street name "Livingston" on the sign is small and a bit unclear, but the "W/S Second To" lettering is quite clear and readable based on the Court's review of the photograph). This photograph and plaintiff's testimony are contrary to defendants' evidence and assertion that on May 12, 2017 there was Emergency No Parking signage posted which prohibited plaintiff from parking on the west side of Ten Broeck Street on that day.
In weighing the evidence in this case, the Court must determine whether the preponderance of the evidence presented at trial supports a finding that the Emergency No Parking signage posted on May 12, 2017 on the west side of Ten Broeck Street where plaintiff parked his car was in fact the signage as depicted in plaintiff's photograph. The Court finds the evidence is sufficient to support such a finding.
Plaintiff gave credible testimony that after discovering that the back of his car had been damaged and upon returning to the west side of Ten Broeck Street where his car had been parked on May 12, 2017, plaintiff took photographs on that day and time. He also testified that, upon returning to that location, he looked for and found an employee of defendant company to report that his car had been damaged by the subject front loader that was still parked on the west side of Ten Broeck Street. It is significant that plaintiff's testimony that he spoke to an employee of defendant company on May 12, 2017 at the incident location was not contradicted by the defense. Notwithstanding that the name of the defendant company's employee who plaintiff testified he spoke to at the subject location was not recognized by defendants' witness at trial to be a name of a known employee of defendant company, the witness did acknowledge that a defendant company employee had reported to him that she was approached by a man at the subject location who claimed that his car had been damaged by defendant company. Returning to the site of the incident and looking to report the subject damage to an employee of defendant company are actions the Court finds to be consistent with plaintiff's claim that the subject damage did not exist prior to him parking his car next to the subject front loader on May 12, 2017.
Moreover, defendants did not provide sufficient evidence to establish that Emergency No Parking signage was posted prohibiting parking on the west side of Ten Broeck Street on May 12, 2017. No testimony by an employee of the City was presented at trial to demonstrate that the person responsible for posting that Emergency No Parking signage had in fact posted such signage, as requested pursuant to defendant company's written request form submitted to the City. Although defendants sought to demonstrate that on May 12, 2017 there would have been a no parking restriction in effect at the subject location based on that written request of defendant company, an additional factor prevents the Court from viewing that evidence in a light most favorable to defendants. Not only did plaintiff present evidence that the Emergency No Parking signage posted on May 12, 2017 at the subject location pertained to the dates of "5-8-17" until "5-10-17" and not to May 12, 2017, the times and location for that May 8 though May 10, 2017 time period (as depicted in Plaintiff's Exhibit 2B) do not match up to the times and location defendant company requested in its Emergency No Parking request form for that same time period.
The evidence presented at trial (Defendants Exh B) shows that defendant company had made a request for the City to post Emergency No Parking signs for the dates of May 8, 2017 through May 10, 2017 from "6:00 AM - 3:30 PM" (not 7 AM until 4 PM, as was written on the sign depicted in Plaintiff's Exhibit 2B) and for the location of "Ten Broeck Street (East Side/Odd #'s)" between cross streets "2nd Street to Clinton Ave" (not Ten Broeck Street W/S Second To Livingston, as was written on the sign depicted in Plaintiff's Exh 2B). Accordingly, this evidence of the existence of signage that incorporated no parking information different from the information that defendant company showed proof it requested for the May 8 through 10, 2017 dates is an additional factor that lends credibility to plaintiff's claim that proper Emergency No Parking signage prohibiting parking on May 12, 2017 on the west side of Ten Broeck Street was not posted when he parked his car.
In weighing the evidence presented at trial, the Court has determined that plaintiff provided sufficient evidence as to liability and the measure of damages. Plaintiff's testimony and photographs are sufficient to establish that the subject front loader's shovel caused the damage plaintiff demonstrated was done to his car. The amount of the lower of the two estimates plaintiff submitted to establish the cost to repair his car will be awarded to plaintiff (Plaintiff Exh 3 [$2041.43]). As to the issue of plaintiff having car insurance to cover the cost of the subject car repairs in excess of the amount of plaintiff's deductible, based on the Court's own research there is no basis in law to impose such limitation on the damages to be awarded. Accordingly, a judgment shall enter in favor of plaintiff and against defendants in the sum of $2041.43 plus the $20.00 filing fee, for a total judgment of $2,061.43.
So ordered. Dated: March 23, 2018 Albany, New York Hon. Helena Heath Albany City Court Judge