Ippolito v Pallotto (2013 NY Slip Op 52095(U))

Ippolito v Pallotto

2013 NY Slip Op 52095(U) [41 Misc 3d 146(A)]

Decided on December 12, 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This opinion is uncorrected and will not be published in the printed Official Reports.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, 9th and 10th JUDICIAL DISTRICTS

Kathleen Ippolito, Appellant, —

against

George Pallotto Doing Business as MONARCH MASONRY CONTRACTING, Respondent.

Appeal, on the ground of inadequacy, from a judgment of the District Court of Suffolk County, Fifth District (Philip Goglas, J.), entered October 11, 2011. The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of only $235.

ORDERED that the judgment, insofar as appealed from, is affirmed, without costs.

Plaintiff commenced this small claims action to recover the sum of $5,000 for defendant's allegedly defective work in building a new patio. Defendant interposed a counterclaim to recover the sum of $5,000 for extra work and materials furnished. After a nonjury trial, the District Court dismissed defendant's counterclaim and awarded plaintiff the principal sum of $235, which it found to be an overpayment for work that was to be performed pursuant to the contract, but which, it was undisputed, was not performed by defendant. Plaintiff appeals, on the ground of inadequacy, from so much of the judgment as awarded her the principal sum of only $235. 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 a 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]). As the record supports the District Court's determination, we find no reason to disturb the judgment, insofar as appealed from.

Nicolai, P.J., LaSalle and Marano, JJ., concur. [*2]
Decision Date: December 12, 2013