Opinion
No. 2023-50273
02-23-2023
Margaret Burns-Shea, Appellant, v. Kenneth Burns and Andrea Maffei, Respondents.
Genevieve Lane Lopresti, for appellant. Kenneth Burns and Andrea Maffei, respondents pro se (no brief filed).
Unpublished Opinion
2022-176 S C
Genevieve Lane Lopresti, for appellant.
Kenneth Burns and Andrea Maffei, respondents pro se (no brief filed).
PRESENT:: JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, JAMES P. McCORMACK, JJ
Appeal from a judgment of the District Court of Suffolk County, First District (Cheryl M. Helfer, J.), entered October 19, 2021. The judgment, after a nonjury trial, awarded plaintiff the principal sum of only $3,795 as against defendant Kenneth Burns and dismissed so much of the complaint as was against defendant Andrea Maffei.
ORDERED that the judgment is modified by vacating the award of $3,795 in favor of plaintiff as against defendant Kenneth Burns and the matter is remitted to the District Court for a new trial limited to the issue of damages on plaintiff's cause of action against Kenneth Burns; as so modified, the judgment is affirmed, without costs.
In this action, plaintiff seeks to recover the principal sum of $14,353.78, based on defendants' alleged failure to pay the principal balance of a debt they had accrued on plaintiff's credit card, as well as interest and fees that plaintiff was charged on the debt. Defendants each denied liability, asserting that they had made multiple payments towards the balance and had also performed services for plaintiff in lieu of payments. Defendant Andrea Maffei denied liability on the additional ground that she had not been named as a user on the credit card.
At a nonjury trial, it was established that defendant Kenneth Burns (defendant) is plaintiff's nephew and that Maffei is defendant's girlfriend. After defendants requested assistance in improving their credit scores, plaintiff opened an American Express (Amex) credit card account on which defendant was an authorized user and on which he accrued debt. Defendant used the Amex card from July 2017 until January 2018, when plaintiff cancelled his authorization to use the card. Plaintiff made principal and interest payments to Amex, and, beginning in April 2018, transferred the debt to a series of promotional accounts in other institutions in order to avoid the further accrual of interest. It was undisputed that defendants had made payments to plaintiff and that a portion of the balance remained unpaid. However, the amounts of the payments defendants had made, any credits to which they were entitled, and the outstanding balance were disputed. Maffei also asserted that, because she had not been a named user on the credit card, she was not liable for any of the debt.
Following the trial, the District Court dismissed the action as against Maffei upon a finding that she had not been a party to the agreement between plaintiff and defendant, and awarded plaintiff the principal sum of $3,795 as against defendant. Plaintiff appeals from the judgment dismissing so much of the complaint as was against Maffei and on the ground of the alleged inadequacy of the amount of the judgment awarded in favor of plaintiff as against defendant.
Since plaintiff did not make Maffei an authorized user on the Amex card, we find that the District Court did not err in determining that plaintiff and Maffei had no contractual relationship and dismissing so much of the complaint as was against Maffei on that basis.
Plaintiff's appellate argument respecting defendants' failure to amend the pleadings (see CPLR 3025 [c]) has no merit, as defendants' answers pleaded that they had made multiple payments and had provided services in lieu of payments. We also find plaintiff's arguments regarding the nonjury trial to be without merit. The court did not err by giving the pro se litigants some leeway in the presentation of their cases (see Stoves & Stoves v Rubens, 237 A.D.2d 280 [1997]) or in permitting defendants to testify in narrative form. Contrary to plaintiff's further argument, the court ruled, explicitly or implicitly, on her attorney's objections. Although on appeal plaintiff argues that Maffei should not have been permitted to testify about defendant's financial records without providing a foundation for her knowledge about those records, plaintiff failed to object to such testimony, thereby rendering this issue unpreserved (see People v Fallen, 249 A.D.2d 771, 772 [1998]; People v Espinal, 174 A.D.2d 500 [1991]; Samuels v City of New York, 7 Misc.3d 68, 71 [App Term, 2d Dept, 2d & 11th Jud Dists 2005]) and we decline to reach it.
However, the District Court appears to have commenced its assessment of the amount of defendant's liability with the $8,196 balance that plaintiff had transferred from Amex in April 2018. This analysis ignores the payments that plaintiff made to Amex from 2017 to 2018. It cannot be determined from the record how the court arrived at the $3,795 judgment or whether it constituted an impermissible compromise judgment (see Avissato v McDaniel, 168 A.D.3d 653, 654 [2019]; Dean v Security Mut. Ins. Co., 21 A.D.3d 658, 660 [2005]; Always In Style Limos, Inc. v Checkered Flag Auto & Bus Repair, 69 Misc.3d 146 [A], 2020 NY Slip Op 51422[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; 105 NY Jur 2d, Trial § 105). We thus conclude that a new trial is required as against defendant, limited to the issue of damages, at which plaintiff will bear the burden of proving the amount of damages to which she is entitled (see Supercool Co. RHVAC, Inc. v LaSalla, 75 Misc.3d 126 [A], 2022 NY Slip Op 50357[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]).
Accordingly, the judgment is modified by vacating the award of $3,795 in favor of plaintiff as against defendant Kenneth Burns and the matter is remitted to the District Court for a new trial limited to the issue of damages on plaintiff's cause of action against Kenneth Burns.
GARGUILO, P.J., EMERSON and McCORMACK, JJ., concur.