[*1]
Abolafia v Nathan
2016 NY Slip Op 50204(U) [50 Misc 3d 142(A)]
Decided on February 22, 2016
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on February 22, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : IANNACCI, J.P., TOLBERT and CONNOLLY, JJ.
2014-1644 N C

Danielle Lee Abolafia, Doing Business as BABY'S PLACE, Respondent,

against

Miriam Nathan, Appellant.


Appeal from a judgment of the District Court of Nassau County, First District (Joy M. Watson, J.), entered February 6, 2014. The judgment, after a nonjury trial, awarded plaintiff the sum of $3,587.44.

ORDERED that the judgment is affirmed, without costs.

In this small claims action, plaintiff, the owner of Baby's Place, a dog-watching business, seeks to recover money she paid to cover the veterinary bills incurred after one or both of defendant's dogs allegedly attacked and injured another dog, a Shar Pei, while all three were under plaintiff's care. At a nonjury trial, plaintiff testified that, at the time of the incident, plaintiff was caring for four dogs that were running around in her backyard. When plaintiff heard the dogs barking, she ran outside and had to pull both of defendant's dogs off the Shar Pei. The face of one of defendant's dogs had blood on it. Plaintiff introduced into evidence the Shar Pei's veterinary bill and a contract wherein defendant had agreed to be responsible for costs associated with any injuries caused by her dogs while being boarded at plaintiff's premises. Defendant raised the issue of plaintiff's comparative negligence, since plaintiff admitted that she had been watching television at the time of the incident, while the dogs were in the backyard. However, the court would not consider the issue of plaintiff's comparative negligence because "no counterclaim" had been interposed. After a nonjury trial, the District Court awarded judgment in favor of plaintiff in the total sum of $3,587.44.

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).

Pursuant to the contract between the parties, defendant was responsible for any injuries caused by her dogs while boarding at plaintiff's place of business. The evidence in this case was sufficient to establish that one or both of defendant's dogs caused the injury to the Shar Pei. [*2]While defendant contends that the court erred in failing to consider plaintiff's alleged comparative negligence, a plaintiff's culpable conduct may not be asserted as a defense to an action for breach of contract (see American Express Equip. Fin. Corp. v Mercado, 34 AD3d 880 [2006]; Nastro Contr. v Agusta, 217 AD2d 874 [1995]). Consequently, we find no basis to disturb the judgment, which provided the parties with substantial justice (see UDCA 1807).

Accordingly, the judgment is affirmed.

Iannacci, J.P., Tolbert and Connolly, JJ., concur.


Decision Date: February 22, 2016