Rouskas v. Wallace J. Scott Motors, Inc. , 111 Misc. 2d 902 ( 1981 )

OPINION OF THE COURT

Edwin S. Shapiro, J.

In this small claims action, plaintiff sues for negligent advice relating to repairs to his 1979 Volvo. It was conceded by plaintiff that defendant performed no work on plaintiff’s vehicle relating to the “diagnosis” or repairs in issue, that plaintiff was not billed for any such work, labor, or services, and that defendant had not been given the opportunity to road test the vehicle or to disassemble the part in issue. Plaintiff relies exclusively upon defendant’s preliminary oral “diagnosis” of a mechanical problem, an uncertified bill from another mechanic for various repairs, and hearsay testimony as to out-of-court statements allegedly made by that mechanic.

Plaintiff was cautioned by the court in advance of trial that his proposed evidence seemed inadequate to establish a prima facie case. Plaintiff acknowledged having received a copy of the “Guide to Small Claims Procedure” from the court clerk when he commenced his action, and he declined an opportunity to adjourn the trial in order to comply with reasonable standards of proof.

After a trial without a jury, the court concludes that if all of the outstanding issues of fact were resolved in plaintiff’s favor, he has failed to establish a prima facie case even under the relaxed standards applicable to small claims actions. A gratuitous opinion by a mechanic under these circumstances does not amount to a cause of action for breach of warranty or for negligence. Consequently, the complaint is dismissed and judgment is granted to the defendant.