| Parlante v Cavallero |
| 2010 NY Slip Op 04349 [73 AD3d 1001] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Nicholas Parlante et al., Appellants, v Arthur Cavallero,Also Known as A.J. Cavallero, Doing Business as Arties Repair Shop,Respondent. |
—[*1] Joseph A. Altman, P.C., Bronx, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from(1) an order and judgment (one paper) of the Supreme Court, Westchester County (Donovan, J.),entered August 27, 2008, which, after a nonjury trial, inter alia, granted the defendant's motionpursuant to CPLR 4401, made at the close of the plaintiff's case, for judgment as a matter of lawfor failure to establish a prima facie case, dismissed the complaint, awarded the defendant theprincipal sum of $30,590 on his counterclaims, and determined that the plaintiffs' claims arefrivolous, and (2) an amended judgment of the same court entered December 12, 2008, which,upon the order and judgment entered August 27, 2008, and after a hearing on the issue ofsanctions, is in favor of the defendant and against them in the principal sum of $31,465, plussanctions pursuant to 22 NYCRR 130-1.1 in the sum of $8,779.09.
Ordered that the order and judgment entered August 27, 2008, is modified, on the law and inthe exercise of discretion, by deleting the provisions thereof awarding the defendant the principalsum of $14,105 on the counterclaim to recover storage costs and determining that the plaintiff'sclaims are frivolous; as so modified, the order and judgment is affirmed, and the amendedjudgment entered December 12, 2008, is vacated; and it is further,
Ordered that the appeal from the amended judgment is dismissed as academic in light of ourdetermination on the appeal from the order and judgment; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The plaintiffs are the owners of a customized 1929 Model A Roadster. In February or March2003, the plaintiff Nicholas Parlante (hereinafter Parlante) brought the car to the defendants andrequested that the defendants perform repairs, including painting the car and installing new doorhinges. The defendant, Arthur Cavallero, alleged that, upon commencing the work, hediscovered that the condition of the car's chassis was such that it was not safe to drive, that heinformed Parlante of the situation, and that they agreed to expand the scope of the repairs toinclude a new custom chassis. Parlante alleged that [*2]Cavallerosimply refused or was incapable of completing the requested repairs and left the car in adisassembled state, effectively destroying it. The plaintiffs then commenced this action torecover damages for breach of contract, negligence, and conversion. The defendant denied theallegations in the complaint and, inter alia, asserted counterclaims to recover damages for breachof contract and associated storage costs.
A nonjury trial was held and, upon the conclusion of the plaintiffs' case, the Supreme Courtgranted the defendant's motion for judgment as a matter of law and dismissed the plaintiffs'causes of action alleging breach of contract, negligence, and conversion. The Supreme Courtthen heard testimony with respect to the defendant's counterclaims. By order and judgmententered August 27, 2008, the Supreme Court awarded the defendant the full amount sought in hiscounterclaims for material/labor ($16,575) and for storage costs ($14,105), plus interest. Theorder and judgment also determined that the plaintiffs' claims were "frivolous," and directed ahearing "to consider the exact imposition of costs and sanctions related to the frivolous andsanctionable prosecution of this case." After a hearing was conducted, an amended judgment wasentered on December 12, 2008, awarding the defendant the principal sum of $31,465, consistingof $16,575 for material/labor costs and $14,890 for storage fees, and imposing sanctions in thesum of $8,779.09.
In granting a motion pursuant to CPLR 4401 for judgment as a matter of law, the trial courtmust determine that, upon the evidence presented, there is no rational process by which the trierof fact could base a finding in favor of the nonmoving party (see Szczerbiak v Pilat, 90NY2d 553 [1997]). Here, viewing the evidence in the light most favorable to the plaintiffs, andgiving them the benefit of every favorable inference (see Elias v Ferri, 46 AD3d 743 [2007]), there was no rational basisupon which the Supreme Court could have found the defendant liable for breach of contract,negligence, or conversion.
With respect to the defendant's counterclaims, in view of the plaintiffs' failure to meet thenotice requirements of CPLR 3101 (d) (1) (i), the Supreme Court did not improvidently exerciseits discretion in precluding the proposed expert testimony of one of the plaintiffs' witnesses (see Schwartzberg v Kingsbridge Hgts.Care Ctr., Inc., 28 AD3d 463, 464-465 [2006]). Contrary to the plaintiffs' contention, tothe extent that the Supreme Court precluded additional fact-based testimony offered by thesubject witness, it properly exercised its discretion, given the probability that such testimonywould have amounted to an unqualified expert opinion. Moreover, while the Supreme Courterred in determining that surreptitiously recorded conversations between the parties were per seinadmissible (see generally People v Gibson, 23 NY2d 618, [1969] cert denied402 US 951 [1971]), the error was harmless since there is no indication that the evidence wouldhave had a substantial influence on the result of the trial (see CPLR 2002; Division Seven, Inc. v HP Bldrs.Corp., 58 AD3d 796 [2009]).
Accordingly, we decline to disturb the damages award to the defendant for labor andmaterials involving the plaintiffs' vehicle. However, the Supreme Court erred in awardingdamages on the defendant's counterclaim to recover storage costs for the subject vehicle.Inasmuch as there was no proof that the defendant complied with the notice requirements, as setforth in 15 NYCRR 82.8, before imposing the storage fees herein, they are precluded fromobtaining such damages. Furthermore, under the circumstances of this case, the Supreme Courtalso improvidently exercised its discretion in determining that the plaintiffs' claims werefrivolous (see generally Hammer v Berg, 193 AD2d 716 [1993]).
The plaintiffs' remaining contentions are without merit. Mastro, J.P., Santucci, Belen andChambers, JJ., concur.