        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

812
CA 15-01901
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


CATHERINE MAHAR, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

HELEN PROPER, DEFENDANT-APPELLANT,
ET AL., DEFENDANTS.


THE LAW OFFICES OF JON LOUIS WILSON, LOCKPORT (JON LOUIS WILSON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

CATHERINE MAHAR, PLAINTIFF-RESPONDENT PRO SE.


     Appeal from an order of the Niagara County Court (Matthew J.
Murphy, III, J.), entered May 8, 2015. The order modified a judgment
of the Wilson Town Court (Robert J. Botzer, J.) by vacating the award
of damages and remitted the matter for a new trial on the issue of
damages.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the remittal of the matter
to Wilson Town Court with respect to defendant Helen Proper and
dismissing the claim against her, and as modified the order is
affirmed without costs.

     Memorandum: Plaintiff commenced this small claims action seeking
damages for conversion based upon allegations that defendants stole
numerous items of personal property from a home that plaintiff had
been renting to certain defendants. Following a trial, Town Court
rendered a judgment in plaintiff’s favor in the amount of $3,000 and,
on defendants’ appeal, County Court modified the judgment by vacating
the award of damages and remitted the matter to Town Court for a new
trial on the issue of damages. County Court determined that
defendants were liable for conversion, but found that plaintiff failed
to provide sufficient evidence of the value of the stolen items.
Helen Proper (defendant) now appeals from County Court’s order (see
CPLR 5703 [b]); the remaining two defendants have not appealed and
thus are not affected by our order herein (see generally Hecht v City
of New York, 60 NY2d 57, 61-62).

     We agree with defendant that County Court erred in remitting the
matter for a new trial on the issue of damages with respect to her,
and we therefore modify the order accordingly. “[S]ubstantive justice
cannot permit plaintiff[] a second opportunity to prove [her] damages
merely because [she] failed to meet [her] prima facie burden in the
                                 -2-                           812
                                                         CA 15-01901

first instance” (Yanni v Beck, 138 AD3d 1365, 1366). Thus, upon
determining that there was insufficient evidence of damages with
respect to defendant, County Court was obligated to dismiss the claim
against her rather than remit the matter for a new trial (see id.).

     In light of our determination, defendant’s remaining contentions
are academic. Plaintiff’s contention that County Court erred in
determining that the evidence of damages is insufficient is not
properly before us because she did not cross-appeal from County
Court’s order (see Hecht, 60 NY2d at 63).




Entered:   October 7, 2016                      Frances E. Cafarell
                                                Clerk of the Court
