Appeal from a judgment of the District Court of Nassau County, Second District (Edmund D. Dane, J.), entered December 11, 2007. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $4,000 and dismissed defendant's counterclaim (see 18 Misc 3d 373).

Judgment affirmed without costs.

Plaintiff commenced this small claims action against her father to recover $4,000, representing the proceeds of the settlement of a lawsuit arising from an injury plaintiff sustained when she was an infant. Defendant counterclaimed to recover $5,000, which he claimed to have paid towards plaintiff's college tuition with the understanding that it was a loan to be paid back.

The trial testimony established that, as a result of a bicycle accident in which plaintiff had been involved when she was 12 years old, and pursuant to an infant compromise order, plaintiff had obtained a settlement in the sum of $6,000, of which $2,000 was for attorney's fees and $4,000 was for plaintiff. The infant compromise order provided that the $4,000 due plaintiff:
"shall be paid by the respondent to the parent [defendant herein] jointly with an officer of the State Bank of Long Island located at 2 Lincoln Avenue, Rockville Centre N.Y. to be deposited in a highest interest bearing account including term deposits in the name of the parent to the credit of the said infant, subject to the further order of this Court."
Defendant failed to deposit the funds as specifically required by the infant compromise order. He claimed at trial that he had deposited the money in an account for plaintiff and that, with her consent, he had used the money to pay for a portion of her college education. Defendant [*2]speculated that plaintiff subsequently changed her mind about the use of the money. Defendant further questioned why plaintiff, who was 27 years old at the time of the trial, waited so long to ask for it. With respect to his counterclaim, defendant testified that plaintiff failed to repay any of the money that defendant and his wife had spent out of their own funds on plaintiff's college education, which all parties had understood constituted a loan to be paid back, although the terms of the loan were unclear. Plaintiff denied her father's allegations (1) that she had agreed to use her settlement money toward her college tuition and (2) that she had agreed to repay the money her parents spent on her college education.

After trial, judgment was entered awarding plaintiff the principal amount of $4,000 and dismissing defendant's counterclaim. Defendant appeals from the judgment.

Defendant argues on appeal that plaintiff's case is time-barred by the applicable statute of limitations and that the judgment should be reversed on the merits. The statute of limitations defense was waived, as it was not raised in the District Court. Contrary to District Court's treatment of this case, plaintiff is not seeking to recover on the ground that defendant violated the infant compromise order. We note that the record is silent as to whether plaintiff had attained her majority at the time the money was used. Rather, plaintiff is seeking to recover money that belonged to her, a fact that she proved at trial by the submission of the infant compromise order. District Court found as fact that defendant had used the subject funds to pay for a portion of plaintiff's college tuition. This finding is supported by the trial testimony and, therefore, will not be disturbed on appeal (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). In order to recover, it was plaintiff's burden to demonstrate that defendant acted in contravention of plaintiff's right to the money. We find, based upon a review of the trial transcript, that plaintiff did not acquiesce to the use of the subject funds for her college education, as defendant claims. Accordingly, defendant acted in contravention of plaintiff's right to the money and the District Court properly awarded judgment to plaintiff.

Defendant's arguments on appeal regarding the dismissal of his counterclaim for failure to repay a loan are unavailing. The record supports the court's finding that there was no meeting of the minds regarding the expectation that plaintiff would repay the money defendant spent on her college education and that defendant alleged only vague contractual terms regarding repayment. The trier of fact "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" (Basler v M & S Masonry & Constr., Inc., 21 Misc 3d 137[A], 2008 NY Slip Op 52295[U] [App Term, 9th & 10th Jud Dists 2008]). The deference accorded to a trial court's credibility determinations applies with even greater force to judgments rendered in the Small Claims Part of the court given the limited standard of review (UDCA 1807; see Williams v Roper, 269 AD2d 125 [2000]). Accordingly, the counterclaim was properly dismissed.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: February 13, 2009