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

1032
CA 14-02191
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, WHALEN, AND DEJOSEPH, JJ.


THOMAS D. ANGIELCZYK, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

RICHARD P. LIPKA, DEFENDANT-RESPONDENT.


MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

BARTH SULLIVAN BEHR, BUFFALO (ALEX M. NEUROHR OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Erie County Court (Sheila A.
DiTullio, J.), dated March 19, 2014. The order affirmed a judgment of
the Buffalo City Court.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this small claims action in
Buffalo City Court seeking damages in the sum of $5,200 for the
diminution in value of his 1996 Jaguar XJR (Jaguar) allegedly caused
by an accident in which defendant’s wife, who was driving defendant’s
vehicle, backed the vehicle into the Jaguar in a parking lot. After a
hearing, City Court awarded judgment in favor of defendant. On
appeal, County Court (hereafter, court) affirmed. We affirm.

      As an initial matter, we note that, by commencing this action
upon a small claim under UCCA article 18, plaintiff waived his right
to appeal, except to the extent that he may “appeal on the sole
grounds that substantial justice has not been done between the parties
according to the rules and principles of substantive law” (UCCA 1807).
“[A] small claims judgment may not be overturned simply because the
determination appealed from involves an arguable point on which an
appellate court may differ; the deviation from substantive law must be
readily apparent and the court’s determination clearly erroneous”
(Coppola v Kandey Co., 236 AD2d 871, 871-872 [internal quotation marks
omitted]; see Pugliatti v Riccio, 130 AD3d 1420, 1421; Schiffman v
Deluxe Caterers of Shelter Rock, 100 AD2d 846, 846-847). “Thus,
judgment rendered in a small claims action will be overturned only if
it is ‘so shocking as to not be substantial justice’ ” (Coppola, 236
AD2d at 872; see Blair v Five Points Shopping Plaza, 51 AD2d 167,
169).
                                 -2-                          1032
                                                         CA 14-02191

     With the above principles in mind, we reject plaintiff’s
contention that this Court’s opinion in Franklin Corp. v Prahler (91
AD3d 49) compels the conclusion that he is entitled to judgment on his
claim for damages based on the Jaguar’s alleged diminution in value.
At the hearing, plaintiff testified that, prior to the accident, the
Jaguar was “basically all original,” that he had entered it in car
shows and that, as a result of the accident, it had diminished in
value in the amount of $5,200. Plaintiff also submitted written
appraisals indicating that the resale value of the Jaguar had
diminished as a result of the accident. Unlike the plaintiff in
Franklin Corp., however, plaintiff submitted no evidence demonstrating
that the Jaguar appreciated in value from the time that he had
purchased it to the time of the accident. We therefore conclude that
the court properly determined that Franklin Corp. is inapplicable to
the instant case (cf. id. at 56-57), and that the rule articulated in
Johnson v Scholz (276 App Div 163) is applicable, instead: “The
measure of damages for injury to property resulting from negligence is
the difference in the market value immediately before and immediately
after the accident, or the reasonable cost of repairs necessary to
restore it to its former condition, whichever is lesser” (id. at 164;
see PJI 2:311). In addition, “where, as here, there is no dispute
that the repairs fully restored the vehicle to its condition before
the accident, and the only basis of the claim made by the plaintiff
for the difference in value immediately before and immediately after
the accident is not that his automobile could not be fully repaired,
but, rather, that after repair the resale value would be diminished
because the car had been in an accident, ‘the diminution in resale
value is not to be taken into account’ ” (Parkoff v Stavsky, 109 AD3d
646, 648, lv denied 22 NY3d 864).

     We have examined plaintiff’s remaining evidentiary contention and
conclude that it is not properly before us because it has been raised
for the first time on appeal (see generally Ciesinski v Town of
Aurora, 202 AD2d 984, 985). In any event, that contention cannot
serve as a basis for reversal of the small claims judgment herein (see
Blair, 51 AD2d at 169; see also Williams v Roper, 269 AD2d 125, 126-
127, lv denied 95 NY2d 898).




Entered:   October 9, 2015                      Frances E. Cafarell
                                                Clerk of the Court
