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Solomon Fachlaev Doing Business As Silver Angel v. Wendy Schwarz Hopkins Doing Business As Wendy's Closet

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


December 21, 2012

SOLOMON FACHLAEV DOING BUSINESS AS SILVER ANGEL, APPELLANT,
v.
WENDY SCHWARZ HOPKINS DOING BUSINESS AS WENDY'S CLOSET,
RESPONDENT.

Appeal, on the ground of inadequacy, from a judgment of the Justice Court of the Town of Bedford, Westchester County (Kevin J. Quaranta, J.), entered December 13, 2010.

Fachlaev v Hopkins

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This opinion is uncorrected and will not be published in the printed Official Reports.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, awarded plaintiff the principal sum of $1,480 on his cause of action.

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Justice Court for a new trial limited to plaintiff's cause of action.

In this small claims action, plaintiff seeks to recover the principal sum of $3,000, representing the cost of jewelry plaintiff provided to defendant. Defendant interposed a counterclaim seeking damages for, among other things, breach of contract. After a non-jury trial, the Justice Court awarded plaintiff the principal sum of $1,480 on his cause of action and dismissed defendant's counterclaim. Plaintiff appeals, on the ground of inadequacy, from so much of the judgment as awarded him the principal sum of only $1,480. Upon a review of the record, we find that substantial justice was not done between the parties (see UJCA 1804, 1807) since the Justice Court failed to allow plaintiff to cross-examine defendant, as was his right under substantive law (see Moon v Khazraie, 11 Misc 3d 131[A], 2006 NY Slip Op 50348[U] [App Term, 9th & 10th Jud Dists 2006]; Rizopoulos v Cartelli, 4 Misc 3d 127[A], 2004 NY Slip Op 50619[U] [App Term, 9th & 10th Jud Dists 2004]; see also Diederich v Del Prior, 18 Misc 3d 132[A], 2008 NY Slip Op 50084[U] [App Term, 9th & 10th Jud Dists 2008]). Accordingly, the judgment is reversed and the matter is remitted for a new trial, limited to plaintiff's cause of action.

We note that although plaintiff did not establish that defendant was, in fact, a corporation, contrary to plaintiff's contention, a corporation may appear and defend a small claims action "by any authorized officer, director or employee" (UJCA 1809 [2]).

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

20121221

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