New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
January 14, 2013
JP PLUMBING CORP., RESPONDENT, --
MARY BYRNE, APPELLANT.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 19, 2010.
J P Plumbing Corp. v Byrne
Decided on January 14, 2013
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This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., WESTON and RIOS, JJ
The judgment, after a non-jury trial, awarded plaintiff the principal sum of $2,750 on its claim and dismissed defendant's counterclaim.
ORDERED that the judgment is affirmed, without costs.
Plaintiff commenced this commercial claims action to recover the sum of $2,750 for plumbing services rendered. Defendant counterclaimed to recover the jurisdictional limit of $5,000, alleging, in effect, that plaintiff had not completed the project as requested. The Civil Court awarded plaintiff the principal sum of $2,750 on its claim and dismissed defendant's 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 (CCA 1804-A, 1807-A; see Ross v Friedman, 269 AD2d 584 ; Williams v Roper, 269 AD2d 125, 126 ). As a general rule, the performance and acceptance of services can give rise to an inference of an implied contract to pay for the reasonable value of such services (see Moors v Hall, 143 AD2d 336 ; Weis v Selected Meat Packers, 91 AD2d 1085 ). Whether an implied contract to pay for services exists is a question of fact, and the result often depends upon the credibility given to the testimony of the respective witnesses (see Shapira v United Med. Serv., 15 NY2d 200 ; Martin H. Bauman Assoc. v H & M Intl. Transp., 171 AD2d 479 ; Moors, 143 AD2d at 338). 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 ; Kincade v Kincade, 178 AD2d 510, 511 ).
Here, the court found that Joseph Pasalacqua, the owner of plaintiff, provided credible testimony that defendant had requested, and he had agreed to perform, additional plumbing work. Before he began this work, Pasalacqua provided defendant with an estimate, telling her that the work would cost between $2,800 and $3,000. Thus, the record contains sufficient evidence to support a finding that the parties entered into an implied contract (see Cohen v Hallmark Cards, 45 NY2d 493, 499 ; Jemzura v Jemzura, 36 NY2d 496, 503-504 ; Matter of Argersinger, 168 AD2d 757 ). Pasalacqua testified that the reasonable value of the additional plumbing work that he had performed was between $2,800 and $3,000. Inasmuch as a fair interpretation of the evidence supports the Civil Court's award of the principal sum of $2,750 in favor of plaintiff, we do not disturb such determination (see Vizzari, 184 AD2d at 564; Kincade, 178 AD2d at 511; Claridge Gardens v Menotti, 160 AD2d 544 ).
Additionally, defendant failed to establish prima facie proof of her counterclaim by submitting into evidence two itemized estimates demonstrating the cost of the work that allegedly still needed to be completed under the agreement (see CCA 1804-A). Thus, defendant's counterclaim was properly dismissed.
Accordingly, the judgment is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: January 14, 2013
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