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Charlotte A. Watson v. Intercounty Paving and Scott Spano

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


December 7, 2012

CHARLOTTE A. WATSON,
APPELLANT,
v.
INTERCOUNTY PAVING AND SCOTT SPANO,
RESPONDENTS.

Appeal from a judgment of the Justice Court of the Town of Carmel, Putnam County (Thomas J. Jacobellis, J.), entered May 31, 2011.

Watson v Intercounty Paving

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 7, 2012

PRESENT: NICOLAI, P.J., 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 sum of $3,000, alleging that defendants' heavy equipment and trucks had damaged her stone retaining wall while defendants were paving her neighbor's property. At a non-jury trial, plaintiff testified that she had not witnessed the occurrence which allegedly had caused the damage, but had noticed the damage after defendants' equipment and trucks were parked in her driveway. Following the trial, the Justice Court dismissed the action on the ground that plaintiff had failed to demonstrate that defendants were responsible for the damage to her property.

On an appeal in a small claims matter, our review is limited to determining whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UJCA 1807). Notwithstanding plaintiff's allegations, the record herein supports the Justice Court's conclusion that plaintiff did not prove that defendants had caused the damage to her retaining wall. Since plaintiff did not demonstrate any liability on the part of defendants, we find no basis to disturb the judgment.

As to plaintiff's argument that the Justice Court's lengthy delay in rendering a decision deprived her of substantial justice, while UJCA 1304 provides that "the court must render judgment within thirty days from the time when the case is submitted for that purpose," that provision "is precatory, not jurisdictional" (Murov v Celentano, 3 Misc 3d 1, 4 [App Term, 9th & 10th Jud Dists 2003] [applying UCCA 1304]; see also Allied & Scrap Salvage Corp. v State of New York, 26 AD2d 880 [1966] [applying CPLR 4213 (c)]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4213:4) and a violation thereof does not warrant a new trial.

Accordingly, the judgment is affirmed.

Nicolai, P.J., Iannacci and LaSalle, JJ., concur. Decision Date: December 07, 2012

20121207

© 1992-2012 VersusLaw Inc.



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