Frank Sialiano, Appellant, v. Costco Wholesale, Respondent. (2026)

ORDERED that the judgment is affirmed, without costs.

In this small claims action, plaintiff alleges that, in the course of changing the tires on his vehicle, defendant's employees negligently caused factory-installed decorative rims to detach from two of the vehicle's wheels, and, on this basis, seeks to recover the principal sum of $2,000. Following a nonjury trial, the Justice Court (Aimee Pollak, J.) dismissed the action.

In a small claims action, our review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UJCA 1807; see UJCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]).

Plaintiff bore the burden of proving his case by a preponderance of the evidence (see Flores v Dana's Superfix Auto Repairs, Inc., 66 Misc 3d 131[A], 2019 NY Slip Op 52072[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Rodriguez v Mitch's Transmission, 32 Misc 3d 126[A], 2011 NY Slip Op 51225[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]). Since, at the time of the trial of the action, the alleged damage to plaintiff's vehicle had not been repaired, it was incumbent on plaintiff to come forward with expert testimony or to produce two itemized estimates of the cost of repair, in order to make a prima facie showing of the amount of his damages (see Rodriguez v Mitch's Transmission, 2011 NY Slip 51225[U] at *1; see also UJCA 1804; Lopez v Dobler Chevrolet, Inc., 16 Misc 3d 137[A], 2007 NY Slip Op 51738[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2007]). As plaintiff failed to come forward with such evidence, we find that the judgment dismissing plaintiff's action provided the parties with substantial justice in accordance with the rules and principles of substantive law (see UJCA 1804, 1807).

We note that we do not consider those assertions made by plaintiff for the first time on appeal or materials plaintiff has submitted with his appellate brief, as they are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the judgment is affirmed.

WALSH, J.P., VAZQUEZ-DOLES and LICCIONE, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: June 4, 2026