Opinion
No. 570354/24
10-15-2024
Danna Gal Wolt, Plaintiff-Appellant, v. T-Mobile, Defendant-Respondent.
Unpublished Opinion
MOTION DECISION
PRESENT: Tisch, J.P., James, Perez, JJ.
PER CURIAM.
Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, New York County (Richard A. Tsai, J.), entered on April 7, 2023, after an inquest, in favor of defendant dismissing the action.
Judgment (Richard A. Tsai, J.), entered on April 7, 2023, affirmed, without costs.
The record establishes that the inquest court applied the appropriate rules and principles of substantive law and accomplished "substantial justice" (CCA §§ 1804, 1807) in rejecting plaintiff's claim for damages stemming from the temporary loss of data on her cell phone and dismissing the within small claims action for lack of proof (see Williams v Roper, 269 A.D.2d 125 [2000], lv dismissed 95 N.Y.2d 898 [2000]). Where there has been a default in appearing or answering and an inquest is directed, it is still necessary to present proof of damages (see Paulson v Kotsilimbas, 124 A.D.2d 513, 514 [1986][even in the case of a default upon inquest and assessment, plaintiff is required to prove the actual damages sustained]). Absent from the record was any evidence showing that plaintiff incurred $10,000 in costs due to the temporary loss of her data, particularly given that the court found plaintiff's testimony in this regard to be "not credible." We also agree that the damages sought by plaintiff were not reasonably foreseeable or within the contemplation of the parties to the cell phone contract (see Kenford Co. v County of Erie, 73 N.Y.2d 312, 319 [1989]).