Gorman v Romo (2007 NY Slip Op 50021(U))

Gorman v Romo

2007 NY Slip Op 50021(U) [14 Misc 3d 130(A)]

Decided on January 3, 2007

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.

Kenneth J. Gorman, Appellant, Dr.

against

Thomas Romo III, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered February 23, 2005. The judgment, after a nonjury trial, dismissed the action.

In this small claims action, plaintiff alleges that defendant agreed to perform a rhinoplasty upon him without the use of artificial implants; that his nose "fell" some time after the surgery; and that, at a visit to defendant's office on January 29, 2003, six months after the surgery, defendant breached the agreement by insisting that corrective surgery could only be done using artificial implants. Plaintiff therefore had the corrective surgery done by another doctor. Defendant responds that at the time of plaintiff's visit six months after the surgery, he never conveyed a final decision to
plaintiff as to how the corrective surgery would be performed, since corrective surgery could not be performed until a year after the initial surgery. The court below, expressly giving full credit to defendant's version of the events, dismissed the action.

In our view, substantial justice was done between the parties in accordance with the rules and principles of substantive law (CCA 1804, 1807). Although the court made a factual error in referring in its decision to a single post-operative visit by plaintiff when in fact there had been seven, this error is inconsequential as the only visit actually at issue was the final consultation of January 29, 2003, at which defendant is alleged to have breached the agreement. The court's determination that defendant had not made a decision as to the method of performing any future surgery and, thus, that defendant did not breach his agreement with plaintiff, was based upon its evaluation of the credibility of the witnesses' testimony. That determination is amply supported by the record and will not be disturbed upon appeal (see Williams v Roper, 269 AD2d 125 [2000]; Blair v Five Points Shopping Plaza, 51 AD2d 167 [1976]). [*2]