| Stumper v Sheehan |
| 2015 NY Slip Op 50086(U) [46 Misc 3d 139(A)] |
| Decided on January 15, 2015 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from a judgment of the District Court of Nassau County, Second District (Susan Katz Richman, Ct. Atty. Ref.), entered May 15, 2013. The judgment, after a nonjury trial, dismissed the action.
ORDERED that the judgment is affirmed, without costs.
In this small claims action, plaintiff seeks to recover $5,000 representing a partial payment he gave defendant, a dentist, toward the cost of plaintiff's mother's denture, alleging that the denture did not fit properly. After a nonjury trial, the District Court dismissed the action.
In a small claims action, our review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UDCA 1807; see UDCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). 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]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d at 126).
Although plaintiff's mother did not testify at the trial, plaintiff testified that the denture had never been properly fitted. Defendant, on the other hand, testified that the denture was properly made, and that he had offered to make any adjustments which might be necessary, but he was not given an opportunity to do so. Notwithstanding the fact that the Small Claims Part of the court is not bound by the rules of evidence (see UDCA 1804), its determination may not be based solely upon hearsay (see Levins v Bucholtz, 2 AD2d 351 [1956]), and plaintiff failed to present any competent nonhearsay evidence to support his claim that the denture was not properly measured or fitted.
Plaintiff contends that the court attorney referee did not permit him to cross-examine defendant, as was plaintiff's right under substantive law (see Rizopoulos v Cartelli, 4 Misc 3d 127[A], 2004 NY Slip Op 50619[U] [App Term, 9th & 10th Jud Dists 2004]). In this case, the questioning of the parties was done by the court attorney referee, in an attempt to elicit the essential and relevant facts. Plaintiff did not object to such questioning, and was not prevented from raising any objection. Nor did plaintiff indicate that he wished to cross-examine defendant. [*2]In view of the foregoing, it cannot be said that "substantial justice has not been done between the parties according to the rules and principles of substantive law" (UDCA 1807).
Accordingly, the judgment is affirmed.
Marano, J.P., Tolbert and Garguilo, JJ., concur.