Appeal from a judgment of the Justice Court of the Village of Ossining, Westchester County (Andrew N. Grass, Jr., J.), entered September 28, 2007. The judgment, after a nonjury trial, dismissed the action.

Judgment reversed without costs and matter remanded to the court below for a new trial.

In this small claims action by plaintiff to recover monies deposited with defendants pursuant to a contract, the court, after a nonjury trial, found in favor of defendants and dismissed the action. We are unable to determine from the scanty record whether there was a breach of contract as contended by plaintiff on this appeal.

The record is insufficient to allow a determination as to whether defendants were performing in accordance with the contract at the time it was rescinded without any apparent agreement relating to the disposition of the deposit. Assuming that defendants were not in breach of contract, the record is also insufficient to allow a determination as to whether the amount defendants sought to retain from plaintiff's deposit for work allegedly performed was appropriate. Accordingly, the matter is remanded to the court below for a new trial.

Rudolph, P.J., Molia and Scheinkman, JJ., concur.
Decision Date: January 08, 2009