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Wellmax Prods. Corp. v State Farm Mut. Auto. Ins. Co.
2021 NY Slip Op 50448(U) [71 Misc 3d 138(A)]
Decided on May 14, 2021
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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 14, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1034 K C

Wellmax Products Corp., as Assignee of Stephanie Crespo, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.


The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. James F. Butler & Associates, for respondent (no brief filed).

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered January 9, 2018. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, limited to the issue of whether verification that had been requested by defendant remained outstanding. Following the trial, the Civil Court dismissed the complaint, stating on the record that the testimony proffered by defendant's witness was credible.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that 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 Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]). As the record supports the Civil Court's determination, which was based upon its assessment of the credibility of the only witness to testify, we find no basis to disturb the Civil Court's finding.

Accordingly, the judgment is affirmed.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.


ENTER:


Paul Kenny


Chief Clerk


Decision Date: May 14, 2021