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Diomaris Contreras v. T.J. Peters Enterprises Doing Business As Silver Circle Distributing

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


June 27, 2012

DIOMARIS CONTRERAS,
APPELLANT, --
v.
T.J. PETERS ENTERPRISES DOING BUSINESS AS SILVER CIRCLE DISTRIBUTING, INC.,
RESPONDENT.

Appeal from a judgment of the Justice Court of the Town of Newburgh, Orange County (Jude T. Martini, J.), entered April 27, 2010.

Contreras v T.J. Peters Enters.

Decided on June 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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., IANNACCI and LaSALLE, JJ

The judgment, after a non-jury trial, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover the principal sum of $3,000, based on defendant's sale to her of a Kirby vacuum cleaner, which she claimed was defective. At a non-jury trial, plaintiff testified that, after the vacuum cleaner had worked well for a number of months, the suction in the vacuum cleaner had diminished, and that defendant's several putative repairs to the vacuum cleaner had failed to improve its function to her satisfaction. Defendant's two witnesses, who were defendant's co-managers, testified that plaintiff had repeatedly brought the vacuum cleaner for repairs with a full bag, and that, when they replaced the vacuum bag, the vacuum functioned well. The Justice Court dismissed the action, and this appeal ensued.

Since the evidence at trial indicated that the manufacturer, rather than defendant, had warranted plaintiff's vacuum, to the extent that plaintiff intended to assert a cause of action against defendant under the Magnuson-Moss Warranty - Federal Trade Commission Improvement Act (15 USC § 2301 et seq.), the Justice Court properly dismissed plaintiff's claim (see Shuldman v DaimlerChrysler Corp., 1 AD3d 343, 345 [2003]).

To the extent that plaintiff may have intended to assert a cause of action against defendant either for breach of the implied warranty of fitness for a particular purpose (UCC 2-315) or the implied warranty of merchantability (UCC 2-314), plaintiff bore the burden of establishing such breach. 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]). Furthermore, 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]). 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]). As the record supports the Justice Court's determination that plaintiff failed to prove her cause of action against defendant, we find no reason to disturb the judgment.

We note that we do not 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 [2008]).

Accordingly, the judgment is affirmed.

Molia, J.P., Iannacci and LaSalle, JJ., concur. Decision

Date: June 27, 2012

20120627

© 1992-2012 VersusLaw Inc.



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