Appeal from a judgment of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), dated June 17, 2005. The judgment, after a nonjury trial, dismissed the action.

Judgment affirmed without costs.

In this small claims action, plaintiff seeks to recover the partial payment of $1,940 that he made towards the cost of dentures, alleging that the dentures did not fit properly. Defendant's principal testified that plaintiff had sought to test the dentures at home for a "couple of days" prior to making the final $300 payment due, which payment
he would make if he was satisfied. However, defendant's principal refused to release the dentures without final payment, which plaintiff would not make. Defendant's principal further testified that she was willing to adjust the dentures or to send them back to the laboratory for adjustment, if necessary.

We are in agreement with the court's dismissal of the action since plaintiff's testimony failed to articulate with any degree of specificity how the dentures failed to fit. Indeed, plaintiff's claim that the dentures were nonconforming was undermined by the fact that he was prepared to test the dentures out for a few days to ascertain whether they would be acceptable. Accordingly, plaintiff's action, which seeks a return of so much of the price as has been paid based upon his rejection of the dentures (see UCC 2-601, 2-711), was properly dismissed, upon the state of facts [*2]existing at the time of trial, for failure of proof. In view of the foregoing, we are of the opinion that substantial justice was done
between the parties according to the rules and principles of substantive law (CCA 1807) and, thus, the judgment is affirmed.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: December 11, 2006