SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department
April 22, 2011
Appeal from an amended judgment of the District Court of Nassau County, Second District (Donald H. Birnbaum, J.), entered October 14, 2009. The amended judgment, after a non-jury trial, awarded plaintiff the principal sum of $2,150.
Trama v. Trama
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This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2011
PRESENT: TANENBAUM, J.P., MOLIA and LaCAVA, JJ.
ORDERED that the amended judgment is affirmed, without costs.
In this small claims action, plaintiff seeks to recover from defendant the value of three items of jewelry and an antique chest. At the non-jury trial, plaintiff's daughter, Joy Lorenzo, testified that plaintiff was a widow; plaintiff's husband, who was Lorenzo's father, had died in 2001. The testimony also showed that defendant was the widow of plaintiff's son, Gaspar Trama, who had died three years prior to trial. Lorenzo testified that, in 1998, plaintiff had loaned defendant three items of jewelry: a man's horseshoe diamond ring, a man's diamond watch, and a gold chevron choker necklace, which items had been appraised in 1997 at $1,700, $1,500 and $1,100, respectively. Lorenzo further testified that plaintiff had orally requested the return of the jewelry a number of times, including one time in Lorenzo's presence, and that in 2009 plaintiff had requested the return of the jewelry in a letter sent to defendant by certified mail, but that defendant had refused to accept delivery of the letter. Plaintiff's letter was introduced into evidence in its original, unopened envelope. Defendant testified that the jewelry had been a gift, rather than a loan. Following the trial, the District Court awarded plaintiff the principal sum of $2,150.
On appeal, defendant contends that there was insufficient evidence to establish plaintiff's claim of conversion. However, from Lorenzo's testimony, the trial court could reasonably have concluded that plaintiff owned some or all of the jewelry, that plaintiff had demanded its return, and that, by refusing to return the jewelry following plaintiff's demand, defendant converted it by exercising unauthorized dominion over the jewelry to the exclusion of plaintiff's rights (see AMF Inc. v Algo Distribs., 48 AD2d 352 ; see also Lerner v Ayervais, 66 AD3d 644, 645-646 ; Matter of White v City of Mount Vernon, 221 AD2d 345, 346 ). The issue of whether the transfer of the jewelry to defendant constituted a gift or a loan presented an issue of the credibility of witnesses, with respect to which we defer to the trial court (see Babwar v Janey, 4 Misc 3d 141[A], 2004 NY Slip Op 51033[U] [App Term, 2d & 11th Jud Dists 2004]).
Defendant objected to the trial court's refusal to draw a "missing witness inference," based on the absence from court of the 91-year-old plaintiff and the presentation of plaintiff's case only through the testimony of plaintiff's daughter. However, even in a jury trial, a missing witness instruction only permits, and does not require, the jury to draw an inference that the testimony of the missing witness would be against the party who failed to produce a witness under his or her control (see 105 NY Jur 2d, Trial § 419). Here, although plaintiff's absence could have had a bearing on the credibility of plaintiff's case, that was for the court, as the trier of fact, to determine (see 105 NY Jur 2d, Trial § 540), and the failure to grant defendant's demand for a "missing witness inference" did not constitute reversible error.
We do not consider defendant's arguments concerning the statute of limitations and her claim that plaintiff's damages were speculative, which, not having been presented to the trial court, were not preserved for review (see Matter of Troy Sand & Gravel Co. v New York State Dept. of Transp., 277 AD2d 782, 783-784 ; Cheung v Lucky Express Corp., 28 Misc 3d 135[A], 2010 NY Slip Op 51359[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).
As we find that the amended judgment rendered substantial justice between the parties according to the rules and principles of substantive law (see UDCA 1804, 1807), the amended judgment is affirmed.
Tanenbaum, J.P., Molia and LaCava, JJ., concur. Decision
Date: April 22, 2011
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