NYC Screen Print., Inc. v Shabbir (2013 NY Slip Op 52071(U))

NYC Screen Print., Inc. v Shabbir

2013 NY Slip Op 52071(U) [41 Misc 3d 145(A)]

Decided on December 9, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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, 2d, 11th and 13th JUDICIAL DISTRICTS

NYC Screen Printing, Inc., Appellant, —

against

Malik Shabbir Doing Business as S M HATS AND T-SHIRTS, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Joseph E. Capella, J.), entered October 31, 2012. The judgment, entered pursuant to a decision of the same court dated April 3, 2012, after a nonjury trial, dismissed the complaint.

ORDERED that, on the court's own motion, the notice of appeal from the decision dated April 3, 2012 is deemed a premature notice of appeal from the judgment entered October 31, 2012 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

In this breach of contract action, plaintiff seeks to recover the sum of $10,978.51, representing the balance allegedly remaining due for merchandise it had sold and delivered to defendant. After a nonjury trial, the Civil Court, in a decision dated April 3, 2012, awarded defendant judgment, finding that plaintiff had failed to establish the existence of any type of contract between the parties. Plaintiff appeals from the decision. A judgment was subsequently entered, from which we deem the appeal to have been taken (see CPLR 5520 [c]). [*2]

Although the Civil Court found that plaintiff had failed to establish the existence of any type of contract, the record indicates that each party was claiming the existence of a contract, albeit of a different nature. Plaintiff claimed that there was a sales contract and sought to recover the amounts due for the merchandise allegedly sold and delivered to defendant, while defendant claimed that his relationship with plaintiff was based on a contract for commissions upon defendant's sales of plaintiff's merchandise to third parties. Thus, the Civil Court's finding that there was no contract is not supported by the evidence. Consequently, we reverse the judgment and remit the matter to the Civil Court for a new trial at which the court shall determine the nature of the agreement between the parties and the obligations thereunder.

Although, in light of the foregoing, we need not reach the issue, we note that, at the trial, defendant Malik Shabbir testified through an Urdu interpreter to whom the Civil Court neglected to administer an oath. While the failure to do so is generally not a reversible error (see generally People v Bicet, 180 AD2d 692 [1992]), the better practice is to swear in the interpreter.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.