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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 13, 2010
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered March 31, 2009. The judgment, after a non-jury trial, awarded plaintiff the principal sum of $13,270.98.
ORDERED that the judgment is affirmed without costs.
In this action, plaintiff alleged that she had lent defendant money and that defendant had failed to pay her back despite her demand for repayment. At the non-jury trial, plaintiff's testimony and the documentary evidence established, and defendant conceded, that plaintiff sent money to defendant by wire transfers. After trial, the Civil Court concluded that the transfers were loans, rather than gifts, as claimed by defendant. The amount awarded plaintiff was based on documentary evidence as well as the parties' testimony. On appeal, defendant does not dispute the amount of money he was determined to have received from plaintiff; he confines his objection to the Civil Court's determination that the money transfers were intended to be loans, and not gifts.
We do not consider defendant's argument that the Civil Court should have adjourned the case because defendant felt unwell on the day of trial, as the record contains no indication either that defendant requested an adjournment or that he was physically unable to participate in the trial. The Civil Court's determination as to the money transfers was based on its finding with respect to plaintiff's credibility, as well as upon the documentary evidence. On an appeal from a bench trial, the decision of the fact-finding court should not be disturbed unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses (see McGuirk v Mugs Pub, 250 AD2d 824 ; Claridge Gardens v Menotti, 160 AD2d 544 ). Finding no such error, we affirm the judgment.
Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: August 13, 2010
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