Franklin Corp.. v. Prahler

• Decision Date: 10 November 2011
• Citation: 932 N.Y.S.2d 610,91 A.D.3d 49,2011 N.Y. Slip Op. 07947
• Parties: FRANKLIN CORPORATION, Plaintiff–Appellant,v.Justin M. PRAHLER, Defendant–Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

91 A.D.3d 49

932 N.Y.S.2d 610

2011 N.Y. Slip Op. 07947

FRANKLIN CORPORATION, Plaintiff–Appellant,

v.Justin M. PRAHLER, Defendant–Respondent, et al., Defendant.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 10, 2011.

The Knoer Group, PLLC, Buffalo (Robert E. Knoer of Counsel), for Plaintiff–Appellant.Mura & Storm, PLLC, Buffalo (Eric T. Boron of Counsel), for Defendant–Respondent.PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GORSKI, AND MARTOCHE, JJ.Opinion by MARTOCHE, J.

On this appeal, we are presented with an issue of damages, namely, whether a plaintiff whose personal property has allegedly increased in value from the time of its purchase is limited to recovering the cost of repairs to the personal property after it has been damaged or whether the plaintiff may seek to recover the diminution in value of the property. Supreme Court agreed with defendant that plaintiff was precluded from presenting evidence at trial on the issue of the alleged diminished value of the property after repairs had been made to it. That was error, and we therefore conclude that the order insofar as appealed from should be reversed.

FACTS

Plaintiff was the owner of a 2000 Ford GT (hereafter, GT). On May 28, 2005, the GT was parked on the east side of Franklin Street in the City of Buffalo. According to plaintiff, the GT “is a rare collector's sports car rapidly appreciating in value.” On the day in question, Justin M. Prahler (defendant) was driving a 1997 Jeep Cherokee and had consumed several alcoholic beverages. He was legally intoxicated when he struck and damaged the GT.

Plaintiff asserted, inter alia, a cause of action for negligence per se against defendant, and it sought $52,000 in damages. Defendants' answer is not contained in the record. They subsequently sought disclosure from plaintiff, and plaintiff responded with several documents, including a letter from State Farm Insurance (State Farm) to plaintiff's counsel advising that, until the vehicle was repaired and thereafter appraised, State Farm was unable to determine if the vehicle had diminished in value. Plaintiff also included an estimate prepared by State Farm indicating that the total cost of repairs for the vehicle was $3,484.35. Plaintiff disclosed the identity of its expert appraiser, James T. Sandoro, and it thereafter supplemented its response and identified Kenneth J. Merusi as another expert appraiser and Jeff Mucchiarelli as a fact witness.

The record also includes an excerpt from the deposition of Mark C. Croce, the president of plaintiff. Croce testified that, as of March 19, 2009, the GT had not been repaired but that it had been driven approximately 2,500 miles. Plaintiff filed a note of issue on August 14, 2009, and the matter was scheduled for trial.

Defendant made a motion in limine pursuant to CPLR 3101 and 3106 seeking to preclude plaintiff's two expert appraisers from “giving expert opinion testimony” at the damages trial ¹ and to preclude Mucchiarelli from testifying. Defendant's counsel stated in his affirmation in support of the motion that the expert disclosure of Sandoro did not contain the specific information required by CPLR 3101(d) and that, even if plaintiff had provided a “technically sufficient response” to the expert disclosure demand, Sandoro should be precluded from providing expert testimony regarding the market value of the GT before and after the accident because he lacked the requisite skill, training, education, knowledge and experience to provide a reliable market value for the vehicle. Defendant's counsel further stated that the other expert witness, Merusi, and the fact witness, Mucchiarelli, should be precluded from testifying because their identities were disclosed after plaintiff filed the note of issue and the matter was ready for trial. In addition, defendant's counsel further stated that Merusi was not qualified as an expert. Along with the motion, defendant submitted an affidavit in support of proposed post-trial jury charges, requesting that the court charge PJI 2:311, entitled “Damages–Property with Market Value.” The charge states as follows:

“If plaintiff's ... automobile ... was damaged by the defendant's negligence, you will award to the plaintiff as damages the difference between its market value immediately before and immediately after it was damaged, or the reasonable cost of repairs necessary to restore it to its former condition, whichever is less.

Thus, if the reasonable cost of repairs exceeds the reduction in market value, you will award the amount by which the market value was reduced. If the reasonable cost of repairs is less than the reduction in market value, you will award to the plaintiff the reasonable cost of repairs required to restore the ... automobile ... to its condition immediately before it was damaged.”

In opposition to the motion and in support of its cross motion in limine, plaintiff submitted the affidavit of its counsel contending that Sandoro was qualified as an expert and that defendant did not make any demand for further information or a motion to compel with regard to Sandoro, nor did he request any further information with regard to expert disclosure. Plaintiff's counsel further averred that Sandoro was a nationally and internationally recognized expert who had testified in state and federal courts throughout the country regarding the market value of automobiles. In addition, plaintiff's counsel averred that Merusi was qualified as an expert and that plaintiff voluntarily disclosed Mucchiarelli as a fact witness without any requirement that it do so. Mucchiarelli would be testifying with respect to an estimate prepared by an auto repair shop, which was provided to defendant as part of discovery, and thus defendant was not prejudiced by the information that was to be the subject of Mucchiarelli's testimony.

Plaintiff also submitted its own proposed post-trial jury instructions including, as relevant on this appeal, language based on PJI 1:60:

“In this case the plaintiff claims that it has suffered damage to its automobile as a result of the accident caused by the defendant. Plaintiff further claims that the measure of damages is the difference between the market value of the vehicle immediately prior to the accident and the value after the accident. It is plaintiff's contention that even with repairs to return the vehicle to its pre-loss condition in terms of appearance and function, this particular vehicle is worth less after the accident simply because it was involved in an accident.”

Plaintiff also submitted a proposed instruction on damages, including a charge that,

“[w]here the repairs do not restore the property to its condition before the accident, the difference in the market value immediately before the accident and after the repairs have been made may be added to the costs of repairs,”

citing Johnson v. Scholz, 276 App.Div. 163, 165, 93 N.Y.S.2d 334. Plaintiff further requested the following charge:

“When, as in this case, the property damaged is a limited edition collector item[,] the plaintiff may recover the difference in money between the market value of the property before and after the damage. In determining the amount of such loss, you will consider the evidence presented with respect to: witnesses experienced in the trade of the specialized market, testimony as to the market for such property, the distinction in value between two similar collector items where one has been damaged and repaired and one that has never been damaged and repaired, together with all other evidence presented to establish the value of the vehicle and the extent of plaintiff's damage.”

The court heard argument on the motion and cross motion immediately before jury selection. In granting the motion, the court expressed its sympathy for plaintiff's position, but it concluded that the case was controlled by the Second Department's decision in Johnson and that the

“testimony of repairs is appropriate and testimony of the value of the car after the repairs are made—if there's a diminution in the value of the car after the repairs are made—are the proper measure of damages to be contemplated by the finder of fact and specifically not—specifically not the difference in diminution in value of the market value of the car, basing the value of the car before the accident and immediately after the accident, simply because it was in an accident....”

The court further concluded that, because its ruling in favor of defendant limited the proof and issues at trial, it would issue an order staying the trial pending consideration of this appeal.

DISCUSSION

The issue raised by this appeal is relatively straightforward: Whether plaintiff is entitled to a jury charge that will permit the jury to consider diminution in the value of the GT or whether plaintiff is limited to recovering the cost of repairs. We conclude that the court erred in limiting plaintiff's proof at trial with respect to the diminution in value of the GT and thus that plaintiff is entitled to the charges it requested on that issue.

Preliminarily, we consider an issue not raised by the parties, namely, the appealability of the order determining the motion and cross motion. “Generally, an order ruling [on a motion in limine], even when made in advance of trial on motion papers[,] constitutes, at best, an advisory opinion [that] is neither appealable as of right nor by permission” ( Innovative Transmission & Engine Co., LLC v. Massaro, 63 A.D.3d 1506, 1507, 879 N.Y.S.2d 856; see Scalp & Blade v. Advest, Inc., 309 A.D.2d 219, 224, 765 N.Y.S.2d 92). “[A]n order that ‘limits ...’ the scope of the issues at trial,” however, is appealable ( Scalp & Blade, 309 A.D.2d at 224, 765 N.Y.S.2d 92). Thus, because the court's order “has a concretely restrictive effect on the efforts of plaintiff[ ] to ... recover certain damages from [him] ..., defendant['s] motion ... [is] ‘the functional equivalent of a motion...