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Alla Landa v. Organic Cleaners

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


June 28, 2011

ALLA LANDA,
RESPONDENT,
v.
ORGANIC CLEANERS,
APPELLANT.

Appeal from a judgment of the District Court of Nassau County, Fourth District (Donald Birnbaum, J.), entered October 8, 2009.

Landa v Organic Cleaners

Decided on June 28, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ

The judgment, after a non-jury trial, awarded plaintiff the principal sum of $1,456.21.

ORDERED that the judgment is modified by providing that contemporaneously with the payment of the judgment, plaintiff shall make available to defendant the subject dress; as so modified, the judgment is affirmed, without costs.

Plaintiff commenced this small claims action against defendant, a dry cleaner, in the amount of $2,186.50 for damaging her evening dress. It is undisputed that defendant damaged the dress. After a non-jury trial, the District Court awarded plaintiff the principal sum of $1,456.21.

The decision of a 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 (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d 125, 126 [2000]). The determination of the trier of fact as to issues of credibility is given substantial deference, as the trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]).

In our view, plaintiff proffered competent evidence of the amount of her damages by establishing such factors as the original purchase price of the dress, its condition at the time it was delivered to the dry cleaners, its age and the extent of damage done (Melendez v Panache Cleaners, Inc., 2003 NY Slip Op 51041[U] [App Term, 9th & 10th Jud Dists 2003]; see 36 NY Jur 2d, Damages § 86). Nevertheless, substantial justice requires that plaintiff return the dress to defendant (see CCA 1805, 1807) contemporaneously with the payment of the judgment. The judgment is modified accordingly.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.

Decision Date: June 28, 2011

20110628

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