Opinion
2006-1737 N C.
Decided May 28, 2008.
Appeal from a judgment of the District Court of Nassau County, First District (Sharon M.J. Gianelli, J.), entered May 5, 2006. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, upon finding in favor of plaintiff as against defendant Diane Hewitt in the sum of $2,521.92 and in favor of defendant Diane Hewitt on her counterclaims in the sum of $5,356, awarded defendant Diane Hewitt the net principal sum of $2,834.
Judgment, insofar as appealed from, modified by vacating the award in favor of defendant Diane Hewitt and dismissing her counterclaims without prejudice, and by awarding plaintiff as against defendant Diane Hewitt the principal sum of $2,521.92; as so modified, affirmed without costs, unless within 30 days of the date of the order entered hereon, defendant Diane Hewitt serves and files in the court below a written statement, signed by her, consenting to reduce the ad damnum clause of her counterclaim so as to bring the counterclaim within the jurisdiction of the Small Claims Part; in the event that defendant Diane Hewitt so consents, judgment modified by awarding defendant Diane Hewitt the net principal sum of $2,478.08, reflecting an award of $2,521.92 in favor of plaintiff and an award of $5,000 in favor of defendant Diane Hewitt; as so modified, affirmed without costs.
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
Plaintiff sold his home to defendant Diane Hewitt. In this small claims action, plaintiff seeks to recover the sum of $3,174.41, which he claims is the value of the heating oil left in the tank when Hewitt took possession of the house. Hewitt interposed two counterclaims, the first seeking to recover the sum of $3,900, and the second seeking to recover the sum of $1,456 arising out of a breach of a single contract. After trial, the court, inter alia, found in favor of plaintiff in the sum of $2,521.92 on his cause of action against defendant Diane Hewitt and found in favor of Diane Hewitt on her counterclaims in the sum of $5,356. Accordingly, judgment was entered on May 5, 2006, inter alia, awarding defendant Hewitt the net principal sum of $2,834 on her counterclaims.
Regarding plaintiff's claim, it is our view that substantial justice was done between the parties according to the rules and principles of substantive law ( see UDCA 1807). It is undisputed that, pursuant to the parties' agreement, defendant Hewitt was obligated to pay plaintiff for the heating oil left in the tank. It is further undisputed that there were 1,095 gallons of oil in the tank when Hewitt took possession of the house. We find no basis in the record for plaintiff's contention that the sum determined to be due him for the oil was inadequate.
We further find that the lower court's award of $3,900 for roof repairs is supported by a fair interpretation of the evidence ( see Jones v Hart, 233 AD2d 297). We note that plaintiff raised no issue with respect to the award of $1,456 upon defendant Hewitt's counterclaim, representing the amount due Hewitt for plaintiff's remaining in the premises after closing. However, defendant Hewitt's counterclaims constitute a single cause of action for breach of a single contract of sale. Thus, they must be dismissed, without prejudice, unless Hewitt consents to reduce the ad damnum clause so as to bring her counterclaims within the Small Claim Part's jurisdictional limit of $5,000 (UDCA 1801, 1805 [c]; see Bing v Fairfield Presidential Mgt. Corp , 5 Misc 3d 130[A], 2004 NY Slip Op 51297[U] [App Term, 2d 11th Jud Dists 2004]). In the event that Hewitt so consents, the judgment is modified to reflect an award of $5,000 in her favor, less the $2,521.92 awarded to plaintiff, for a net principal award in her favor of $2,478.08. We note that the court cannot, on its own, reduce the amount sought in a counterclaim in order to bring it within the court's jurisdictional limit ( see id.). Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.