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Evermist, Ltd. Lawn Sprinklers v Pappas (2010 NY Slip Op 52123(U))
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Decided on December 3, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., LaCAVA and IANNACCI, JJ 2009-1868 W C.
Evermist, Ltd. Lawn Sprinklers, Respondent,
against
Ellen Pappas, Appellant.
Appeal from a judgment of the Justice Court of the Town of Rye, Westchester County (Anthony M. Provenzano, J.), entered December 26, 2005. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $693.78.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Justice Court for a new trial limited to the issue of damages.
Plaintiff lawn sprinkler company commenced this action to recover for sprinkler system services performed for defendant. After a nonjury trial, the Justice Court found in favor of plaintiff, and awarded plaintiff the amount which it claimed was due for the services it had rendered to defendant.
file:///C|/Users/Peter/Desktop/NY/1/2010_52123.htm[4/21/2013 12:03:16 PM] Evermist, Ltd. Lawn Sprinklers v Pappas (2010 NY Slip Op 52123(U))
The evidence adduced at trial on December 20, 2005 established that on three separate occasions, plaintiff had provided services at defendant's premises, at defendant's behest, and was not compensated therefor. In her testimony, defendant acknowledged that she owed plaintiff money for the first visit and that plaintiff had never indicated that she would not be charged for the subsequent visits. Accordingly, plaintiff was entitled to recover the reasonable value of the work performed for defendant (see United Bldg. Maintenance Assoc., Inc. v 510 Fifth Ave. LLC, 18 AD3d 333 [2005]).
Plaintiff's president testified that, for the past two years, he has computed labor charges at the fixed hourly rate of $95 for two workers, a five-dollar increase from the rate he had charged for the prior seven years. He also testified that defendant was charged $175 for one hour and 25 minutes of labor on July 8, 2004, $170 for one and a half hours of labor on July 20, 2004 and $50 for twenty minutes of labor on July 26, 2004.
Defendant's contention on appeal, that plaintiff's president's testimony was inadmissible hearsay, is unpreserved, since defendant did not object to its admission during the trial (CPLR [*2]5501 [a] [3]; Gunnarson v State, 95 AD2d 797, 798 [1983]; see also Feltus v Staten Is. Univ. Hosp., 285 AD2d 445, 446 [2001]). Thus, plaintiff's president's testimony could be used to determine the value of the services rendered, with its weight a question to be determined by the trier of fact (see Collins v Fowler, 62 App Div 614 [1901]; 22A NY Jur 2d, Contracts

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