Opinion
2006-885 N C.
Decided June 29, 2007.
Appeal from a judgment of the District Court of Nassau County, Second District (Sharon M. J. Commissiong, J.), entered on August 23, 2005. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,400 and dismissed defendant's counterclaim.
Judgment modified by vacating the award in favor of plaintiff; as so modified, affirmed without costs.
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
In this commercial claims action arising out of an agreement for the placement of new stucco by plaintiff on defendant's residence, substantial justice was not done between the parties according to the rules and principles of substantive law (see UDCA 1807-A). The price as specified in the original contract was $21,500 and it should be inferred from the testimony of both parties that the wire lath was to be affixed with screws and washers rather than nails. Plaintiff failed to do this or provide the requisite materials for the job, and defendant eventually hired others. The trial court, in awarding plaintiff the sum of $1,400, improperly concluded that plaintiff was entitled to "some recovery."
Nor do we award any recovery to defendant on his counterclaim in view of his inadequate proof of damages. UDCA 1804-A provides, "An itemized bill or invoice, receipted or marked paid, or two itemized estimates for services or repairs, are admissible in evidence and are prima facie evidence of the reasonable value and necessity of such services and repairs." None of defendant's documentation satisfied these conditions and he failed to call any expert to the stand. Under the circumstances, we determine that he failed to submit sufficient proof of damages.
Accordingly, the judgment is modified by vacating the award of damages in favor of plaintiff. We thereby leave the dismissal of defendant's counterclaim undisturbed.
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.