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Joseph Tavernese, Appellant, and Michele Tavernese v. Desiree Comer

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


December 20, 2012

JOSEPH TAVERNESE, APPELLANT, AND MICHELE TAVERNESE,
PLAINTIFF,
v.
DESIREE COMER,
RESPONDENT.

Appeal from a judgment of the District Court of Suffolk County, Second District (C. Stephen Hackeling, J.), entered June 14, 2010.

Tavernese v Comer

Decided on December 20, 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This opinion is uncorrected and will not be published in the printed Official Reports.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., NICOLAI and IANNACCI, JJ

The judgment, insofar as appealed from, after a non-jury trial, implicitly dismissed so much of the action as was brought by plaintiff Joseph Tavernese and awarded defendant the net principal sum of $1,383.83 on her counterclaim insofar as it was asserted against plaintiff Joseph Tavernese.

ORDERED that the judgment, insofar as appealed from, is affirmed, without costs.

Plaintiffs commenced this small claims action to recover the sum of $1,454 from their former tenant. Defendant interposed a counterclaim for the return of her $2,000 security deposit, plus interest. After a non-jury trial, the District Court dismissed plaintiffs' action, found that plaintiffs were entitled to set off the sum of $616.17 against the security deposit, and awarded defendant a judgment on her counterclaim in the sum of $1,383.83. Plaintiff Joseph Tavernese appeals. Upon a review of the record, we find that the judgment, insofar as appealed from, provided the parties with substantial justice according to the rules and principles of substantive law (UDCA 1804, 1807).

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 (see Williams v Roper, 269 AD2d 125, 126 [2000]). Here, the District Court found, with respect to plaintiff Joseph Tavernese's cause of action, that defendant was liable only for a lost remote control, new locks and an unpaid electric bill. There is no basis to disturb these findings, which are supported by defendant's testimony. In any event, the District Court correctly noted that, even if defendant would have been found liable for other damage, plaintiff Joseph Tavernese had failed to make a prima facie showing of the reasonable value and necessity of the repairs of such damage because he did not submit two itemized estimates, or an itemized bill or invoice that was marked paid, as required by section 1804 of the Uniform District Court Act. Consequently, the District Court properly dismissed plaintiff Joseph Tavernese's cause of action, set off the sum of $616.17 against defendant's security deposit and awarded defendant the sum of $1,383.83 on her counterclaim as against Joseph Tavernese.

Accordingly, the judgment, insofar as appealed from, is affirmed.

Molia, J.P., Nicolai and Iannacci, JJ., concur. Decision Date: December 20, 2012

20121220

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