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Nicholas M. Macri v. Kenneth Washington

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


November 4, 2011

NICHOLAS M. MACRI,
RESPONDENT,
v.
KENNETH WASHINGTON,
APPELLANT.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 27, 2010.

Macri v Washington

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 4, 2011

PRESENT: RIOS, J.P., WESTON and GOLIA, JJ

The judgment, after a non-jury trial, awarded plaintiff the principal sum of $1,129 and dismissed defendant's counterclaim.

ORDERED that the judgment is affirmed, without costs.

In this small claims action for the return of a security deposit, defendant appeals from a judgment, entered after a non-jury trial, awarding plaintiff the principal sum of $1,129 and dismissing defendant's counterclaim for damage to the property and for use and occupancy.

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 e.g. Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with even greater force to judgments rendered in the Small Claims Part of the court given the limited standard of review (CCA 1807; see Williams v Roper, 269 AD2d 125, 126 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a 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 e.g. Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]).

In the instant matter, the trial court could credit plaintiff's testimony that he moved out before the expiration of the lease. In addition, defendant failed to establish his damages in accordance with CCA 1804, which requires, in the absence of expert testimony, the submission of an itemized bill or invoice, receipted or marked paid, or two estimates for services or repairs.Accordingly, the judgment is affirmed.

Rios, J.P., Weston and Golia, JJ., concur.

Decision Date: November 04, 2011

20111104

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