[*1]
Scott v Beraka
2005 NY Slip Op 51985(U) [10 Misc 3d 131(A)]
Decided on December 7, 2005
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on December 7, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: DECEMBER 7, 2005 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT September 2005 Term McCooe, J.P., Gangel-Jacob, Schoenfeld, JJ.
570273/05

Luhena Scott, Plaintiff-Appellant,

against

George Beraka, Defendant-Respondent.


Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court, New York County (Debra Samuels, J.), entered on or about September 25, 2004 after trial, in favor of defendant dismissing the action.


PER CURIAM:

Judgment (Debra Samuels, J.), entered on or about September 25, 2004, reversed, without costs, and judgment awarded to plaintiff in the principal amount of $2,000.

Under the terms of the parties' written agreement, plaintiff agreed to pay "a non-refundable deposit of $2,000" to "guarantee [her] surgery time." The uncontroverted evidence at trial established that since plaintiff cancelled the surgery two weeks prior to the scheduled date, defendant was not billed for operating room/surgery time by the hospital. Since the deposit was to guarantee plaintiff's "surgery time" and defendant incurred no loss in connection therewith, we find that the judgment in favor of defendant did not accomplish substantial justice consistent with the rules and principles of substantive law (CCA 1804, 1807).

This constitutes the decision and order of the court. [*2]
Decision Date: December 07, 2005