Opinion
2009-914 Q C.
Decided July 16, 2010.
Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered July 9, 2008. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $300.
ORDERED that the judgment, insofar as appealed from, is affirmed without costs.
PRESENT: PESCE, P.J., WESTON and GOLIA, JJ.
Plaintiff commenced this small claims action against defendant, a contractor, based on a claim of defective work. Following a nonjury trial, the Civil Court awarded plaintiff the sum of $300. Plaintiff appeals on the ground of inadequacy.
At trial, it was established that plaintiff had commenced a separate small claims action to recover for the same defective work against Prime Contracting, the company that she had paid to perform the work at issue, and that plaintiff had accepted $3,500 from Prime Contracting in settlement of that action. Defendant testified that he had never entered into an agreement directly with plaintiff to perform any work, nor did he have anything to do with the project. Plaintiff, on the other hand, testified that Prime Contracting had completed all of the work being sued upon with the exception of electrical work which defendant had performed. While plaintiff further testified that she had hired defendant to do the work at issue, and that defendant had then "sold" the job to Prime Contracting, she also stated that during the pendency of the work she understood that Prime Contracting was the only contractor on the job and that she had paid Prime Contracting, and only Prime Contracting, for the work at issue, including the electrical work. In view of the foregoing, and taking into account plaintiff's commencement and settlement of the prior lawsuit against Prime Contracting for the work at issue in this lawsuit, this action should have been dismissed, as plaintiff has failed to establish a prima facie case against the defendant herein. However, because defendant did not cross-appeal from the judgment awarding plaintiff $300, we leave the judgment undisturbed and find that it rendered substantial justice between the parties in accordance with the rules and principles of substantive law (CCA 1807).
Pesce, P.J., Weston and Golia, JJ., concur.