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Authors

James M. Lee

Abstract

Under the "loss of use" doctrine, unlike under common law, a plaintiffs right to compensation for their loss of use of chattel for the duration between the time of damage and when a substitute can be attained, is recognized. This Note traces the evolution of this progression, the problems it poses for courts, and analyzes the underlying reasons for this trend. It discusses a split between the Second and Third Department of the New York Courts on whether such compensation should be given in instances when the plaintiff had their own substitute item, e.g. a replacement vehicle after an auto accident, and was thus not required to, and in fact did not, have any out-of-pocket expense in procuring their replacement. Ultimately, this Note concludes that under the land use doctrine a court should not refrain from awarding damages to a plaintiff who has their own replacement available and urges for uniformity on this issue in the New York Courts.

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