Lundgren v Marshall's, Inc. (2012 NY Slip Op 50768(U))

Lundgren v Marshall's, Inc.

2012 NY Slip Op 50768(U) [35 Misc 3d 135(A)]

Decided on April 25, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Carolyn Lundgren, Appellant, —

against

Marshall's, Inc., Respondent.

Appeal from a judgment of the District Court of Nassau County, Second District (Norman Janowitz, J.), entered November 23, 2010. The judgment, after a nonjury trial, dismissed the action.

Plaintiff commenced this small claims action to recover the sum of $1,000, as the value of her handbag and its contents which were stolen while she was shopping at defendant's store. After a nonjury trial, the District Court found that plaintiff had failed to prove any negligence by defendant and dismissed the action. Upon a review of the record, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (UDCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]).

The decision of a 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 at 126). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as the trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]).

In the instant case, no bailment was created, as plaintiff, who was shopping at defendant's store, never delivered her pocketbook to defendant's custody and control (see generally Chubb & Son v Edelweiss, Inc., 258 AD2d 345 [1999]; Dubay v Trans-Am. Ins. Co., 75 AD2d 312 [1980]; Dixon v X-Treme Body & Fender, Inc., 20 Misc 3d 130[A], 2008 NY Slip Op 51422[U] [App Term, 2d & 11th Jud Dists 2008]). Thus, no prima facie case of negligence based upon a bailment has been established (see generally Chubb & Son v Edelweiss, Inc., 258 AD2d 345). Consequently, the record amply supports the District Court's dismissal of the action.