| Linn v Park Ave. Mtge. Group |
| 2008 NY Slip Op 52145(U) [21 Misc 3d 132(A)] |
| Decided on October 29, 2008 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendant appeals from a judgment of the Small Claims Part of the Civil Court of the City of
New York, Bronx County (Diane A. Lebedeff, J.), entered on or about September 18, 2006, after
trial, in favor of plaintiff and awarding him the principal sum of $795.74.
Per Curiam.
Judgment (Diane A. Lebedeff, J.), entered on or about September 18, 2006, reversed, without costs, and action dismissed.
Giving proper effect to the clear and unambiguous language of the parties' written mortgage brokerage agreement, there was no legal basis for the small claims award reimbursing plaintiff for non-refundable application, credit report and appraisal fees paid in connection with an application to obtain financing to purchase a cooperative apartment. In awarding plaintiff a refund of the fees, the trial court inappropriately rewrote the parties' agreement under the guise of contract interpretation (see 85th Street Rest. Corp. v Sanders, 194 AD2d 324, 326 [1993]). Dismissal of the action accomplishes "substantial justice" consistent with substantive law principles (CCA 1807).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 29, 2008