Tobia v. Loiacono

93 Misc. 2d 689 | N.Y. App. Term. | 1977

OPINION OF THE COURT

Memorandum.

Judgment in plaintiff’s favor unanimously reversed, without costs, and a new trial ordered.

In this small claims action involving an automobile property damage case, plaintiff’s mother testified that she was driving plaintiffs car with her consent, but in her absence and not upon her business; that she was struck by defendant’s car; that she took the car in to be repaired and paid $500 for such repairs. Over objection, the court admitted the paid bill into evidence.

In our opinion, the judgment should be reversed since the paid bill dated August 21, 1975 was inadmissible pursuant to CPLR 4533-a. It is neither itemized nor certified. It does not contain a verified statement that no part of the payment received therefor will be refunded to the debtor nor that the amounts itemized therein are the usual and customary rates charged for such repairs. Moreover, there is no proof that a notice of intention to introduce such bill was served upon defendants at least 10 days before trial.

Finally, it is noted that the defendants are not entitled to set off the payments made by plaintiffs mother, as an alleged obligor, to reduce their liability at this time since the court did not make a finding that she was also negligent. Moreover, at the new trial, defendants must show that plaintiffs mother made the payment in her capacity as an obligor.

Concur: Farley, P. J., Pittoni and Silberman, JJ.