Opinion
2007-268 S C.
Decided March 10, 2008.
Appeal from a judgment of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered August 15, 2006. The judgment, after a nonjury trial, awarded plaintiffs the principal sum of $6,130 as against defendant Epoxy Tech, Inc.
PRESENT: McCABE, J.P., TANENBAUM and MOLIA, JJ.
Judgment reversed without costs and matter remanded to the court below for a new trial limited to the issue of damages.
The instant action was brought by plaintiffs to recover damages for the alleged defective installation of kitchen flooring. Plaintiffs sought reimbursement of the amount paid for installation of the flooring, as well as for the cost of removing and replacing the flooring. After a nonjury trial, the court found defendant Epoxy Tech, Inc. liable for the defective installation and awarded plaintiff the principal sum of $6,130.
The determination of the trial court after a nonjury trial should not be disturbed on appeal unless it is clear that the court's conclusions could not have been reached upon a fair interpretation of the evidence, especially where the findings of fact rest in large measure on considerations relating to the credibility of witnesses ( see Bercow v Damus, 5 AD3d 711). In the instant case, the trial court's findings of fact and conclusions of law as to liability were based upon credibility determinations which were not inconsistent with a fair interpretation of the evidence. There is, accordingly, no basis to disturb the lower court's determination of liability.
With respect to the issue of damages, however, the court below erred in its determination of what was required of plaintiffs as proof of damages. After plaintiffs' expert witness testified regarding the estimated cost of replacing the kitchen flooring, the court specifically stated that it did not find his testimony credible. The court adjourned the trial in order for plaintiffs to procure more credible expert testimony, and stated that it would not accept itemized written estimates. On the adjourned date, however, plaintiffs did not produce an expert, and the court accepted two itemized written estimates as proof of the cost to repair the flooring. While in the Small Claims Part of the court, two itemized estimates "are admissible in evidence and are prima facie evidence of the reasonable value and necessity of such services or repairs" (UDCA 1804), the same rules of evidence are not applicable in the instant case, brought in the regular part of the District Court. Accordingly, the matter is remanded to the court below for a new trial limited to the issue of damages, where plaintiffs may prove their damages by means of independent expert testimony, subject to cross-examination by defendant.
McCabe, J.P., Tanenbaum and Molia, JJ., concur.