Mirando v Abiden Constr., Inc. (2008 NY Slip Op 51685(U))

Mirando v Abiden Constr., Inc.

2008 NY Slip Op 51685(U) [20 Misc 3d 142(A)]

Decided on July 30, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.

Michael Mirando, Respondent,

against

Abiden Construction, Inc., Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 8, 2007. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $5,000 and dismissed defendant's counterclaim.

Judgment modified by reducing the award to plaintiff to the principal sum of $3,517.76; as so modified, affirmed without costs.

Plaintiff commenced the instant small claims action to recover damages resulting from defendant's alleged breach of contract. Defendant counterclaimed, alleging that it was plaintiff who breached the subject contract. After a nonjury trial, the court awarded plaintiff the principal sum of $5,000 and dismissed defendant's counterclaim.

The decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d 125 [2000]). Furthermore, the determination of the trier of fact as to issues of credibility is given substantial deference as the court has the opportunity to observe and evaluate the testimony and demeanor of the witnesses, thereby affording the trial court a better perspective from which to evaluate the credibility of the witnesses (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). We find that there is support in the record for the court's determination in favor of plaintiff on the issue of liability, including its dismissal of defendant's counterclaim. However, plaintiff's documentary proof established that the cost of repairing the defective work performed by defendant was $3,517.76, not $5,000 as awarded by the court. Accordingly, the judgment in favor of plaintiff is reduced to the principal sum of $3,517.76 in order to effectuate substantial justice (see CCA 1804, 1807). [*2]