Opinion
No. 2011–793 K C.
2012-05-15
George T. McCROSSIN, Respondent, v. BENSON AVENUE OWNERS CORPORATION, Appellant.
Present: PESCE, P.J., WESTON and ALIOTTA, JJ.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered December 9, 2010. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,750.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial limited to the issue of damages.
Plaintiff commenced this small claims action to recover the sum of $1,750 for damage to his cooperative apartment caused by, among other things, water emanating from the apartment above. At a nonjury trial, plaintiff testified that, after renovations had been completed in the apartment directly above his, water began leaking into his apartment from the apartment above. After trial, the Civil Court awarded judgment in favor of plaintiff in the principal sum of $1,750.
Plaintiff established that defendant had breached the warranty of habitability ( seeReal Property Law § 235–b; Frisch v. Bellmarc Mgt., 190 A.D.2d 383 [1993];Heights 170 LLC v. York, 29 Misc.3d 138[A], 2010 N.Y. Slip Op 52045[U] [App Term, 1st Dept 2010] ). However, with respect to the issue of damages, while at trial plaintiff referred to two estimates for repairs, no estimates were admitted into evidence. Consequently, we find that the judgment did not render substantial justice between the parties according to the rules and principles of substantive law ( see CCA 1804, 1807; Ross v. Friedman, 269 A.D.2d 584 [2000];William v. Roper, 269 A.D.2d 125, 126 [2000] ).
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial limited to the issue of damages.