| Five Star Air, Inc. v Kasab |
| 2018 NY Slip Op 50204(U) [58 Misc 3d 156(A)] |
| Decided on February 9, 2018 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Danny Kasab, appellant pro se. Brad Berfas, Esq., for respondent (no brief filed).
Appeal from a decision of the Civil Court of the City of New York, Kings County (Noach Dear, J.), dated November 16, 2011, and from a judgment of that court entered February 16, 2012. The judgment, insofar as appealed from as limited by the brief, entered pursuant to the decision, after a nonjury trial, awarded plaintiff the principal sum of $4,500.
ORDERED that so much of the appeal as is from the decision dated November 16, 2011 is dismissed, as no appeal lies from a decision (see CCA 1702; Farag v Farag, 4 AD3d 502 [2004]); and it is further,
ORDERED that the judgment, insofar as appealed from, is affirmed, without costs.
Plaintiff commenced this action to recover the sum of $6,000 allegedly due on a contract for the purchase and installation of air conditioning units. Defendant interposed a counterclaim to recover the sum of $3,000, alleging that plaintiff had breached the agreement. At a nonjury trial, it was established that defendant had paid plaintiff $6,000 of the $12,000 contract price but then hired another contractor to complete the job. After a nonjury trial, the Civil Court awarded plaintiff the principal sum of $4,500 and dismissed defendant's counterclaim. As limited by his brief, defendant appeals from so much of the judgment as awarded plaintiff the principal sum of $4,500.
In reviewing a determination made after a nonjury trial, this court's power is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, bearing in [*2]mind that the determination of the 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 Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]; D'Elia v 58-35 Utopia Parkway Corp., 43 AD3d 976, 977-978 [2007]). Furthermore, "an award of damages should place the plaintiff in the same position as he or she would have been in if the contract had not been breached" (Ng v Tow, 260 AD2d 574, 575 [1999]), and the damages must be reasonably certain and directly traceable to the breach (see Ng v Tow, 260 AD2d at 575).
Upon a review of the record, we find that the Civil Court properly determined that defendant had breached the contract and was liable to plaintiff in the sum of $4,500. Consequently, we find no reason to disturb the judgment.
Accordingly, the judgment, insofar as appealed from, is affirmed.
ELLIOT, J.P., PESCE and ALIOTTA, J., concur.