| Tropaitis v Thermos |
| 2015 NY Slip Op 50493(U) [47 Misc 3d 135(A)] |
| Decided on March 30, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, First District (David W. McAndrews, J.), entered April 18, 2013. The judgment, after a nonjury trial, awarded plaintiff the sum of $2,260 and dismissed defendant's counterclaim.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the District Court for the entry of a judgment awarding plaintiff the principal sum of $1,135 plus interest on his cause of action and awarding defendant the principal sum of $2,739.50 plus interest on his counterclaim.In this small claims action, plaintiff seeks to recover the principal sum of $5,000, alleging that defendant, a mover he hired to move furniture from the house he was selling to his new home, caused damage to both homes and to several pieces of plaintiff's furniture. Defendant counterclaims to recover the principal sum of $2,739.50 as the amount due and owing on the moving contract. Following a nonjury trial, the District Court awarded plaintiff the principal sum of $2,260 and dismissed defendant's counterclaim.
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 [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).The record does not support the District Court's dismissal of defendant's counterclaim. Plaintiff acknowledged that he had entered into a written agreement with defendant, that defendant had performed the moving services and that plaintiff had not paid defendant the sum of $2,739.50 due under the contract. Consequently, substantial justice requires that the dismissal of defendant's counterclaim be vacated and that defendant be awarded the principal sum of $2,739.50 plus interest thereon.
With respect to plaintiff's cause of action, we note that in a small claims proceeding, "two itemized estimates for . . . repairs . . . are prima facie evidence of the reasonable value and necessity of such . . . repairs" (UDCA 1804). Plaintiff established the value of the damage to his [*2]furniture and the floors in his new home by submitting estimates from three furniture-repair shops and two floor-repair companies. The lowest of the estimates for the repairs to the furniture was in the sum of $895, and the lowest of the estimates for the repairs to the floors was in the sum of $240. With respect to plaintiff's claim for $500 as a result of alleged damage caused by defendant to plaintiff's former house, for which plaintiff claimed he was responsible to the purchaser of that house, plaintiff failed to properly establish this item of damage. Consequently, upon a review of the record, we find that substantial justice requires that plaintiff be awarded the principal sum of $1,135 plus interest on his cause of action.
Accordingly, the judgment is reversed and the matter is remitted to the District Court for the entry of a judgment awarding plaintiff the principal sum of $1,135 plus interest on his cause of action and awarding defendant the principal sum of $2,739.50 plus interest on his counterclaim.
Marano, P.J., Iannacci and Garguilo, JJ., concur.