New York SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
April 25, 2012
KATHY SPRAGUE AND JAMES SPRAGUE, RESPONDENTS,
JOHN J. LEASE REALTORS, INC. DOING BUSINESS AS JOHN J. LEASE CURABBA REALTORS, APPELLANT.
Appeal from a judgment of the City Court of Newburgh, Orange County (Peter M. Kulkin, J.), entered December 16, 2010.
Sprague v John J. Lease Realtors, Inc.
Decided on April 25, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: IANNACCI, J.P., NICOLAI and MOLIA, JJ
The judgment, after a non-jury trial, awarded plaintiffs the principal sum of $787.50.
ORDERED that the judgment is affirmed, without costs.
Plaintiffs commenced this small claims action to recover the principal sum of $1,575, representing the brokerage commission they had paid to defendant. At a non-jury trial, plaintiff Kathy Sprague testified that plaintiffs had sought to rent a house. She stated that plaintiffs had two school-age children and that she had located rental listings on the internet, but had hired defendant real estate agency for the purpose of ensuring that the house plaintiffs rented lay within the Lee Road School District. Ms. Sprague testified that plaintiffs had rented a house in reliance on defendant's representations that it was located in the Lee Road School District, but that, after moving into the house, they were told by the school district that, because the house was located outside the school district, their children would have to transfer out of the Lee Road School. Mary Drennen, defendant's agent who had assisted plaintiffs in locating the house they had rented, agreed that she and Ms. Sprague had discussed plaintiffs' goal of renting a house in the Lee Road School District, but stated that Ms. Sprague had indicated that, even if the rental premises were not within the Lee Road School District, she believed she could obtain permission for her children to attend that school. Drennen testified that defendant was not the listing agent for the rental premises, that the listing agent had been the one who had identified the premises as being within the Lee Road School District, and that defendant routinely relies on the representations of the listing agent for such information. Drennen asserted that she had not verified the information provided by the listing agent because plaintiffs had not emphasized its importance to her. She did not dispute that the demised premises lay outside the Lee Road School District. Drennen stated that defendant had retained $787.50 of plaintiffs' $1,575 brokerage fee and had paid the listing agent the sum of $787.50. Following the trial, the City Court awarded plaintiffs the principal sum of $787.50, and defendant appeals.
Plaintiffs made out a prima facie case of negligent misrepresentation (see Houlihan/Lawrence, Inc. v Duval, 228 AD2d 560, 561-562 ; see also Grammer v Turits, 271 AD2d 644, 645 ; Blumenthal-Levy v Coldwell Banker, 14 Misc 3d 1238[A], 2007 NY Slip Op 50416[U] [Sup Ct, NY County 2007]). To the extent that Drennen's testimony conflicted with that of Ms. Sprague, the determination of the action depended upon the trial court's findings as to credibility, which are entitled to substantial deference due to the trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses (see Vizzari v State of New York, 184 AD2d 564 ; Kincade v Kincade, 178 AD2d 510, 511 ). Consequently, we conclude that the judgment rendered substantial justice to the parties according to the rules and principles of substantive law (UCCA 1807).
We note that we do not consider those factual assertions contained in defendant's brief which, not having been presented to the trial court, are dehors the record (see Chimarios v Duhl, 152 AD2d 508 ).
Accordingly, the judgment is affirmed.
Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: April 25, 2012
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