Scheur v. Pal Classics, Inc. — 92 Misc. 2d 1018

Majority

p. 1018

Jerome Scheur, Plaintiff, v Pal Classics, Inc., Defendant.

District Court of Suffolk County, Third District,

January 23, 1978

APPEARANCES OF COUNSEL

Elliott Tananbaum for defendant. Jerome Scheur, plaintiff pro se.

OPINION OF THE COURT

Defendant moves to reargue its motion for leave to transfer the action from the Small Claims Part of the court to the civil calendar for the purpose of bringing in a third-party defendant.

While the court agrees that a multiplicity of lawsuits is generally to be avoided it does not feel that this is the general situation.

The Legislature has created the small claims action as a vehicle for the public to bring suit without counsel. The procedure in small claims and the standards of proof that are required are appreciably different in the small claims trial than in the civil part of this court.

If the original motion was granted, the plaintiff would, have to contend against two attorneys in a court where the rules of evidence would be fully applied and rather than determining the outcome by the standard of substantial justice, the burden of proof would be by a preponderance of the credible evidence.

p. 1019

If the court adheres to its original decision, the defendant is not barred from bringing action against the proposed third-party defendant, should the plaintiff prevail. Although the court recognizes the difficulties which the defendant may face, it feels that holding otherwise would deprive the plaintiff of his right to a small claims action.

The motion to reargue is granted and upon reargument the original decision of this court is adhered to.