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Maria Posada and Ottonel Melendez Doing Business As New Island Construction v. Gaspar Nogara

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


August 6, 2012

MARIA POSADA AND OTTONEL MELENDEZ DOING BUSINESS AS NEW ISLAND CONSTRUCTION,
APPELLANTS,
v.
GASPAR NOGARA, RESPONDENT.

Appeal from a judgment of the District Court of Nassau County, Fourth District (Norman Janowitz, J.), entered July 15, 2010.

Posada v Nogara

Decided on August 6, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: NICOLAI, P.J., MOLIA and IANNACCI, JJ

The judgment, after a non-jury trial, dismissed plaintiffs' claim and awarded defendant the principal sum of $5,000 on his counterclaim.

ORDERED that the judgment is affirmed, without costs.

Plaintiffs commenced this small claims action to recover the sum of $3,000 from defendant for the balance due on a home improvement contract. Defendant counterclaimed for $5,000, the jurisdictional limit of the Small Claims Part (see UDCA 1801, 1805 [c]), to recover the cost of completing the work required under the contract. After a non-jury trial, the District Court dismissed plaintiffs' claim, holding that plaintiffs did not have a home improvement license and therefore could not collect the balance of the contract price claimed to be owed. Additionally, the court awarded defendant the principal sum of $5,000 on his counterclaim. Upon a review of the record, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (UDCA 1804; 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]).

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 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 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 given the limited scope of review (see UDCA 1807; Williams v Roper, 269 AD2d at 126; Slomin's, Inc. v Trerotola, 25 Misc 3d 140[A], 2009 NY Slip Op 52442[U] [App Term, 9th & 10th Jud Dists 2009]).

Here, plaintiffs' claim was properly dismissed by the District Court as plaintiffs admitted at trial that they were not licensed to perform home improvement work in Nassau County (see CPLR 3015 [e]; see also B & F Bldg. Corp. v Liebig, 76 NY2d 689, 692 [1990]; ENKO Constr. Corp. v Aronshtein, 89 AD3d 676 [2011]). Moreover, defendant established his counterclaim by submitting into evidence two itemized estimates demonstrating the cost of the work to be completed under the contract (see UDCA 1804; see also Rodriguez v Mitch's Transmission, 32 Misc 3d 126[A], 2011 NY Slip Op 51225[U] [App Term, 9th & 10th Jud Dists 2011]; Jain v Rich, 24 Misc 3d 133[A], 2009 NY Slip Op 51389[U] [App Term, 9th & 10th Jud Dists 2009]). As the record supports the District Court's conclusions, we find no basis to disturb the judgment. We note that we do not consider those assertions made by plaintiffs for the first time on appeal which, not having been presented to the trial court, were not preserved for review (see Matter of Troy Sand & Gravel Co. v New York State Dept. of Transp., 277 AD2d 782 [2000]; Trama v Trama, 31 Misc 3d 137[A], 2011 NY Slip Op 50742[U] [App Term, 9th & 10th Jud Dists 2011]). Accordingly, the judgment is affirmed.

Nicolai, P.J., Molia and Iannacci, JJ., concur. Decision Date: August 06, 2012

20120806

© 1992-2012 VersusLaw Inc.



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