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Elzbieta Sadowska v. Byron Lamont Wetzel

New York Supreme and/or Appellate Courts Appellate Term, First Department


June 15, 2011

ELZBIETA SADOWSKA, PLAINTIFF-APPELLANT,
v.
BYRON LAMONT WETZEL, DEFENDANT-RESPONDENT.

Plaintiff appeals from (1) a judgment of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), entered on or about September 2, 2009, after trial, in favor of defendant dismissing the action, and (2) an order (same Court and Judge), entered October 7, 2009, which denied her motion, in effect, to reopen the trial.

Per curiam.

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This opinion is uncorrected and will not be published in the printed Official Reports.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

Judgment and order (Arlene P. Bluth, J.), entered on or about September 2, 2009 and October 7, 2009, respectively, affirmed, without costs.

"The decision of the fact-finder at a non-jury trial should not be disturbed on appeal unless it is obvious that the court's conclusion could not have been reached under any fair interpretation of the evidence, especially when those findings rest in large measure on considerations relating to the credibility of witnesses" (Kimm v Chang, 38 AD3d 481 [2007]; see Claridge Gardens, Inc. v Menotti, 160 AD3d 544, 544-545 [1990]). Here, the trial evidence, fairly interpreted, supports the court's express factual finding that the monies sued for did not constitute unpaid loans (see Siebert v Dermigny, 60 AD3d 526 [2009]; see Friedenberg v Mollen, 7 Misc 3d 133[A], 2005 NY Slip Op 50610[U][2005]).

Plaintiff's post-trial motion, denominated as one "to renew and reargue," but which, in effect, sought to reopen the trial, was properly denied (see Gomez v Park Donuts, 249 AD2d 266, 267 [1998]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concurI concurI concur

Decision Date: June 15, 2011

20110615

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