Natalia Potapova, appellant pro se. Randy Maultsby, respondent pro se (no brief filed).

Appeal from a judgment of the Justice Court of the Town of Southampton, Suffolk County (Michael I. Solomon, J.), entered November 9, 2021. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,000.

ORDERED that the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $1,500; as so modified, the judgment is affirmed, without costs.

At a nonjury trial of this small claims action, it was established that plaintiff had rented a house with a swimming pool from defendant for the month of June 2020. A rider to the lease stated that, "if for any reason the pool is not 'swimmable' (industry standard) at time of occupancy a penalty of $500 per day shall be assessed against the Landlord until the pool is swimmable." On June 1, 2020, which was the initial rental day, the pool was discovered to require a repair to its heating apparatus. Plaintiff seeks in this small claims action to recover the principal sum of $3,000, claiming that the pool was not "swimmable" for six days.

At the trial, plaintiff did not testify or produce any witness; nor did he present any evidence either about an "industry standard" for swimming pool temperatures or as to the actual water temperature of the pool on any day. Instead, without indicating any direct knowledge and without being sworn, plaintiff's counsel stated that the heating equipment had only been repaired on June 4th and that the pool had been "frigid" until two days later. The record includes one email from defendant and one from plaintiff's wife indicating that it took, or could have taken, more than four days for the pool to reach a "swimmable temperature"; however, in several other emails, plaintiff and his wife indicated that the pool had not been "swimmable" for four days rather than six.

In her testimony, defendant, who was sworn, conceded that the pool's temperature had been too low for the first three days of the rental. She testified that the heating apparatus had been repaired on June 3rd, and, by June 4th, which was the fourth day of the rental, the pool's water temperature was 80 degrees Fahrenheit, and thus above the minimum 78 degrees [*2]Fahrenheit temperature required for the pool to be "swimmable."

Following the trial, the Justice Court (Michael I. Solomon, J.) awarded plaintiff the principal sum of $3,000, upon a finding that the evidence demonstrated that the water had been "frigid," and thus not "swimmable," for six days, and that plaintiff was entitled to $500 for each of those days. Defendant appeals from the judgment entered on November 21, 2021.

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" (UJCA 1807; see UJCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]). 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 (see Christopher v Topakian, 77 Misc 3d 126[A], 2022 NY Slip Op 51101[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; see also Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]).

Plaintiff, who bore the burden of establishing his case by a preponderance of the evidence (see Stiefel v Babakhanova, 83 Misc 3d 135[A], 2024 NY Slip Op 51190[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2024]; De Meo v Consolidated Edison Co. of NY, Inc., 32 Misc 3d 131[A], 2011 NY Slip Op 51319[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2011]), failed to present any evidence as to the industry standard for swimming pools or as to the actual temperature of the pool during the time in issue, and failed to testify to refute defendant's assertion that the pool's temperature had been adequate on the fourth day of the lease. Under the circumstances, we find the Justice Court's conclusion that the pool was "unswimmable" for six days is not supported by the record, and, therefore, the judgment awarding plaintiff the principal sum of $3,000 failed to render substantial justice between the parties (see UJCA 1804, 1807). However, based on defendant's admission that the pool was unheated for three days, thereby, in effect, conceding liability, we find that, in order to render substantial justice between the parties, plaintiff is entitled to an award of $500 per day for three days, for a total of $1,500.

Accordingly, the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $1,500.

GARGUILO, P.J., WALSH and CONWAY, JJ., concur.