Summary
denying a pro se litigant, in the interest of justice, “an additional opportunity to establish her damages”
Summary of this case from Limani Realty, LLC v. ZayfertOpinion
October 31, 1988
Appeal from the Second and Eleventh Judicial Districts.
Ordered that the order is reversed, on the law, with costs, and the provision of the judgment of the Civil Court, Queens County, dismissing the cause of action for loss of use of a motor vehicle is reinstated.
In order to prove her claims for loss of use the plaintiff was required to offer expert testimony as to the cost of renting a replacement vehicle for the period reasonably required to make repairs to her damaged vehicle (see, Hoover v Montanus, 108 Misc.2d 916, 918; Central Greyhound Lines v Bonded Freightways, 193 Misc. 320, 323; 8 N.Y. Jur 2d, Automobiles, § 787; cf., Allanson v Cummings, 81 A.D.2d 16, 21). The proof offered by the plaintiff at trial fell far short of the established standard for demonstrating loss-of-use damages. The plaintiff did not introduce any competent expert testimony nor did she provide any documentation to support her statement as to the actual rental value of the substitute vehicle. The plaintiff also did not make any effort to prove that the rental period was reasonable. On the record before us, it would be impermissible speculation to make an award for the loss of use (see, e.g., Kenford Co. v County of Erie, 108 A.D.2d 132, 135-136, affd 67 N.Y.2d 257; Schanbarger v Dott's Garage, 72 A.D.2d 882, lv denied 49 N.Y.2d 701; Schneider v State of New York, 38 A.D.2d 628). Therefore, the trial court properly dismissed the plaintiff's cause of action for loss of use.
We agree with Presiding Justice Kassoff's dissenting opinion at the Appellate Term that a new trial should not be ordered in the interest of justice to afford the plaintiff an additional opportunity to establish her damages for loss of use. Although the plaintiff appeared pro se at the trial, she did so at her peril. "A litigant appearing pro se acquires no greater right than any other litigant and such appearance may not be used to deprive defendants of the same rights enjoyed by other defendants" (Morgan v Sylvester, 125 F. Supp. 380, 388, affd 220 F.2d 758, cert denied 350 U.S. 867, reh denied 350 U.S. 919). Webster v Farmer ( 135 Misc.2d 12), which the majority of the Appellate Term cited in its decision, is inapposite on its facts. The Webster case involved a pro se litigant appearing before the Small Claims Court. Small claims matters are subject to informal procedures which are designed to facilitate the handling of minor claims and grievances without resort to the use of counsel (Buonomo v Stalker, 40 A.D.2d 733). Thus, the Small Claims Court has wider latitude in the conduct of the proceedings before it. Mangano, J.P., Thompson, Brown and Sullivan, JJ., concur.