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Lalit M. Aery v. Mta New York City Transit

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


July 28, 2011

LALIT M. AERY, RESPONDENT,
v.
MTA NEW YORK CITY TRANSIT,
APPELLANT,
v.
CON EDISON CO. OF NY, INC.,
DEFENDANT.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.; op 26 Misc 3d 1221[A], 2009 NY Slip Op 52737[U]), entered December 24, 2009. The judgment, insofar as appealed from, after a non-jury trial, awarded plaintiff the principal sum of $4,800 as against defendant MTA New York City Transit.

Aery v MTA N.Y. City Tr.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2011

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

ORDERED that the judgment, insofar as appealed from, is affirmed, without costs.

Plaintiff commenced this small claims action against MTA New York City Transit (MTA) and Con Edison Co. of NY, Inc. to recover $4,800 for damages to his water pipe, alleged to have been caused by stray current emanating from an installation owned by one or the other of defendants. After a non-jury trial, plaintiff was awarded the principal sum of $4,800 as against the MTA, and the action against Con Edison Co. of NY, Inc. was dismissed. This appeal by the MTA ensued.

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]). The standard of review on an appeal from a small claims judgment is whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (CCA 1807; Ross v Friedman, 269 AD2d 584 [2000]). The determination of a 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]). The deference which an appellate court normally accords to the credibility determinations of a trial court "applies with greater force" in small claims proceedings, given the limited scope of review and the often attenuated record available on appeal (see Williams v Roper, 269 AD2d 125, 126 [2000]).

The evidence clearly supported the Civil Court's factual findings as to the cause of the damage to plaintiff's pipe. Plaintiff's expert witness, a former New York City employee with a degree in metallurgical engineering, whose duties included determining the cause of water line failures, stated that he had experience with the sort of damage exhibited by plaintiff's pipe and that the cause was stray current (see Ward v Iroquois Gas Corp., 233 App Div 127, 132-133 [1931]). He further concluded that the source of the stray current was the MTA's subway electrical system, which ran close to plaintiff's pipe, and that there was no other potential source of stray current in the vicinity of the pipe. Indeed, even the MTA's own expert witness conceded that the damage he had observed to the pipe could have been caused by stray current.

Accordingly, as the judgment, insofar as appealed from, provided the parties with substantial justice, it is affirmed.

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

Steinhardt, J., taking no part.

Decision Date: July 28, 2011

20110728

© 1992-2011 VersusLaw Inc.



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