SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
February 9, 2012
Appeal from a judgment of the City Court of Yonkers, Westchester County (Robert C. Cerrato, J.), entered March 2, 2010.
Ahmad v Andalusia School
Decided on February 9, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.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: MOLIA, J.P., LaCAVA and IANNACCI, JJ
The judgment, after a non-jury trial, awarded plaintiff the principal sum of $4,868.
ORDERED that the judgment is affirmed, without costs.
Plaintiff, who had previously been a member of defendant's faculty, returned to defendant's employ in January 2008. Prior to commencing this second period of employment, plaintiff was orally promised a $3,500 "relocation" fee, which he was paid. Thereafter, plaintiff decided not to renew his employment for the fall 2008 term. It was undisputed that defendant subsequently deducted from plaintiff's vacation pay the $3,500 relocation fee it had previously paid plaintiff. Plaintiff brought this small claims action to recover the sum of $4,300 for breach of contract. At a non-jury trial, plaintiff contended that he had, in fact, been underpaid $1,425 in each of his four vacation checks. Defendant claimed that the $3,500 had been an incentive payment, which plaintiff was not entitled to retain once he decided not to return to work at the defendant school for the fall 2008 semester. The parties did not have a written contract, nor were any exhibits introduced into evidence at trial. Following trial, the City Court awarded plaintiff the principal sum of $4,868, based on the court's determinations as to the credibility of the witnesses.
The determination of a fact-finding court should not be disturbed on 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 ). 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 ). "A trial court's resolution of questions of credibility is particularly within its domain and should not be disturbed on appeal if supported by the record" (Vizzari v State of New York,184 AD2d 564, 564 ; see Kincade v Kincade,178 AD2d 510, 511 ). Here, the City Court's judgment turned on its resolution of issues of credibility and rendered substantial justice between the parties according to the rules and principles of substantive law (UCCA 1807). Accordingly, the judgment of the City Court is affirmed.
We note that we do not consider those items annexed to defendant's brief which, not having been presented to the trial court, are dehors the record (see Chimarios v Duhl, 152 AD2d 508 ); nor do we consider those contentions which defendant has raised for the first time on appeal (see North Fork Bank v ABC Merchant Servs., Inc., 49 AD3d 701, 702 ).
Molia, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: February 09, 2012
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