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Jean B. Bruno v. Alex M. Goldblum

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


April 11, 2011

JEAN B. BRUNO,
RESPONDENT,
v.
ALEX M. GOLDBLUM,
APPELLANT.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered July 21, 2009.

Bruno v Goldblum

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 11, 2011

PRESENT: GOLIA, J.P., PESCE and RIOS, JJ

The judgment awarded plaintiff the principal sum of $4,037.81 and dismissed defendant's counterclaims.

ORDERED that the judgment is affirmed, without costs.

Plaintiff, defendant's former landlord, commenced this small claims action to recover the sum of $4,687.20 for the nonpayment of rent and for property damage. Defendant counterclaimed to recover the sum of $3,812.50 for an alleged breach of the lease, for the alleged conversion of personal property, and for the return of his security deposit. After a non-jury trial, the Civil Court awarded plaintiff the principal sum of $4,037.81 and dismissed defendant's counterclaims.

On appeal, defendant argues that the Civil Court miscalculated the rent due and erred in awarding plaintiff $812.81 for damage to the floor of the apartment and in failing to award defendant damages on his counterclaims.

We agree with defendant that the Civil Court miscalculated the total rents due during the term of the lease, but to defendant's advantage, underestimating defendant's rent liability by $787.50. Defendant's offer of proof of additional rent payments was made for the first time in support of a motion to vacate the judgment, which was summarily denied, and from which defendant does not appeal. Thus, the proof is dehors the record on appeal and may not be considered. Insofar as the Civil Court awarded plaintiff $812.81 for property damage, based on the lesser of two repair estimates submitted by plaintiff, it cannot be said that the amount awarded as damages was improper (CCA 1804; e.g. Kobiliak v Parking Systems, Ltd., 2003 NY Slip Op 50838[U] [App Term, 9th & 10th Jud Dists 2003]; Richardson v International Towing & Recovery Inc., 2002 NY Slip Op 40407[U] [App Term, 2d & 11th Jud Dists 2002]).

The Civil Court's dismissal of defendant's counterclaims was proper. The counterclaims were unsupported by any evidence aside from defendant's testimony. Insofar as the court's determination was based on credibility grounds, "[o]n a bench trial, the decision of the fact-finding court should not be disturbed upon appeal 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. This standard applies with greater force to judgments rendered in the Small Claims Part, which is commanded to do substantial justice between the parties according to the rules of substantive law' (CCA 1804)" (Williams v Roper, 269 AD2d 125, 126 [2000] [internal quotation marks and citation omitted]).

Accordingly, the judgment is affirmed.

Golia, J.P., Pesce and Rios, JJ., concur.

Decision Date: April 11, 2011

20110411

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