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Hui-Chin Yang and Wei-Tsu Tseng v. Stephen M. O'rourke and Michael O'rourke

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


December 21, 2012

HUI-CHIN YANG AND WEI-TSU TSENG,
APPELLANTS,
v.
STEPHEN M. O'ROURKE AND MICHAEL O'ROURKE,
RESPONDENTS.

Appeal from a judgment of the City Court of Newburgh, Orange County (Peter M. Kulkin, J.), entered February 3, 2011.

Hui-Chin Yang v O'Rourke

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This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2012

PRESENT: NICOLAI, P.J., LaCAVA and LaSALLE, JJ

The judgment, insofar as appealed from, after a non-jury trial, dismissed plaintiffs' cause of action.

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and judgment is directed to be entered in favor of plaintiffs in the principal sum of $960.

In September 2009, defendants contracted to build plaintiffs an attached garage and to convert plaintiffs' existing garage into a home office. The proposed amount for the project was $41,000. After plaintiffs had remitted several payments to defendants and the contracted-for work progressed, a dispute arose between the parties prior to completion of the project. Following a meeting in November 2009, defendants did not return to the work site. After retaining another contractor who completed the job, plaintiffs commenced this small claims action to recover the principal sum of $5,000, representing a partial refund of the contract price, claiming that defendants had been paid disproportionately to the amount of the construction which they had actually completed. Defendants counterclaimed to recover the principal sum of $3,920, contending that plaintiffs had failed to pay them for certain materials and labor.

At a non-jury trial, plaintiff Hui-Chin Yang testified that she had repeatedly reached out to defendants to compel them to return, while defendant Stephen O'Rourke testified that defendants did not complete construction because they were "forced off the job" when they would not agree to perform additional work requested by Hui-Chin Yang without any additional remuneration therefor. Plaintiffs' expert, the contractor hired to complete the unfinished project, testified that the work which defendants had completed had been done in a workmanlike manner, and that any deficiencies in the work likely stemmed from their inability to finish the project. He also testified that he and an assistant had each worked for approximately 12 hours at $30 per hour in order to complete some framing which had not been completed by defendants. He further confirmed Hui-Chin Yang's testimony that there was a constant layer of dust coming from the cement floor in the garage, which, according to his testimony, would require four gallons of sealant at $60 per gallon to repair. Hui-Chin Yang testified that she herself had applied the sealant to the garage floor which had, to some extent, remedied the problem.

The City Court found, insofar as is relevant to this appeal, that the work completed by defendants had been performed in a workmanlike manner, and that defendants had completed an adequate amount of work for the amount of money they had been paid by plaintiffs. As plaintiffs had not demonstrated that they were entitled to a refund, the City Court dismissed plaintiffs' cause of action. A judgment dismissing their cause of action and implicitly dismissing defendants' counterclaim was entered on February 3, 2011. Plaintiffs appeal from so much of the judgment as dismissed their cause of action.

This court's review of a small claims judgment is limited to determining whether substantial justice was done between the parties according to the rules and principles of substantive law (UCCA 1807). An appellate court may not reverse a small claims judgment even if it differs with the small claims court on an arguable point of fact or law, absent a showing that there is no support in the record for the trial court's conclusions or that they are otherwise so erroneous as to deny substantial justice (see Payne v Biglin, 2 Misc 3d 127[A], 2003 NY Slip Op 51694[U] [App Term, 9th & 10th Jud Dists 2003]). Additionally, the deference which is normally accorded to the credibility determinations of a trial court "applies with greater force" in a small claims proceeding (see Williams v Roper, 269 AD2d 125, 126 [2000]).

The evidence shows that, in total, plaintiffs paid defendants $31,599, and that defendants completed the footings, footing drain, foundation, foundation waterproofing, siding, roofing and the majority of the framing that the contract called for. Defendants did not complete the flooring, electricity, plumbing, sheet rock, taping, painting, trim work and a slight portion of the framing. Essentially, the parties are in agreement that defendants completed the exterior portion of the construction project.

As noted above, plaintiffs' expert, the contractor who had completed the work after defendants had left the job, opined that the work which defendants had completed was done in a workmanlike manner. The record demonstrates, however, that plaintiffs incurred a cost of $720 to have the contractor complete and repair some of the framing, and approximately $240 for Hui-Chin Yang to repair the defective cement garage floor. Accordingly, the judgment, insofar as appealed from, is reversed and judgment is directed to be entered in favor of plaintiffs in the principal sum of $960.

Nicolai, P.J., LaCava and LaSalle, JJ., concur. Decision Date: December 21, 2012

20121221

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