Opinion
2004-1654 SC.
Decided March 9, 2006.
Appeal from a judgment of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered April 29, 2004. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,800.
Judgment reversed without costs and matter remanded to the court below for a new trial.
PRESENT: RUDOLPH, P.J., TANENBAUM and LIPPMAN, JJ.
This small claims action was commenced by plaintiff, defendant's former tenant, to recover a $1,200 security deposit. Plaintiff also sought an additional $1,800 for defendant's failure, during the course of her tenancy, to provide her with a working oven, shower, and exterior light, and for his failure to remove snow and ice from the exterior stairs.
Our review is limited to determining whether substantial justice was done "according to the rules and principles of substantive law" (UDCA 1807). While the decision of the court below appears to have been based primarily on the credibility of the witnesses, it is noted that plaintiff, although sworn, did not testify. Notwithstanding defendant's contention that the court below improperly permitted plaintiff's friend, Mr. La, to appear as a non-attorney representative pursuant to UDCA 1815, in our opinion, Mr. La's participation at trial was not as plaintiff's representative, but rather as a witness on plaintiff's behalf. There was no indication, however, that Mr. La's testimony was based upon his personal knowledge of the facts, a factor which might have been explored had the court given defendant an opportunity to cross-examine Mr. La, as was defendant's right pursuant to substantive law ( see Rizopoulos v. Cartelli, 4 Misc 3d 127 [A], 2004 NY Slip Op 50619[U] [App Term, 9th 10th Jud Dists]; Graves v. American Express, 175 Misc 2d 285 [App Term, 2d 11th Jud Dists 1997]). Accordingly, in our opinion, substantial justice requires that the matter be remanded to the court below for a new trial.
We note that while defendant did not interpose a counterclaim, upon the retrial, defendant should nevertheless be afforded an opportunity to proffer evidence regarding the alleged damage to the stairway as a setoff to plaintiff's claim seeking return of her security deposit.
Rudolph, P.J., Tanenbaum and Lippman, JJ., concur.