New York Supreme and/or Appellate Courts Appellate Term, First Department
June 15, 2011
BYRON LAMONT WETZEL,
Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered on or about October 13, 2009, after trial, in favor of defendant dismissing the action, and bringing up for review an order (same court and Judge), dated October 13, 2009, which granted defendant's motion to vacate a default judgment.
Sadowska v Wetzel
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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 15, 2011
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
Order and judgment (Peter H. Moulton, J.), each entered on or about October 13, 2009, affirmed, without costs.
Civil Court appropriately vacated defendant's initial default in appearance, given the judicial preference for disposition of cases on the merits and the existence of a meritorious defense (see Atkins v Malota, 1 AD3d 294, 295 , lv dismissed 3 NY3d 701 ; Tannenbaum v Jones, 4 Misc 3d 135[A], 2004 NY Slip Op 50801[U] ).
Moreover, applying the narrow standard of review governing appeals in small claims actions (see CCA 1807), and giving due deference to the trial court's express findings of fact and credibility (see Williams v Roper, 269 AD2d 125, 126 , lv dismissed 95 NY2d 898 ), we sustain the judgment issued in defendant's favor dismissing the action. It was within the province of the trial court, as fact-finder, to determine that defendant did not initiate any contact with plaintiff or otherwise engage in any other wrongful conduct against her. The trial court was fully warranted in discrediting plaintiff's version of the events based upon its negative assessment of her credibility (see Canty v Rossitto-Canty, 23 Misc 3d 145[A], 2009 NY Slip Op 51167[U] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 15, 2011
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