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Igor Burmistrov, Respondent v. 7 Ocean Express

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


February 8, 2013

IGOR BURMISTROV, RESPONDENT, --
v.
7 OCEAN EXPRESS, INC., APPELLANT.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Nancy M. Bannon, J.), entered June 30, 2011.

Burmistrov v 7 Ocean Express, Inc.

Decided on February 8, 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This opinion is uncorrected and will not be published in the printed Official Reports.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., RIOS and SOLOMON, JJ

The judgment, after a non-jury trial, awarded plaintiff the principal sum of $1,804.

ORDERED that the judgment is affirmed, without costs.

Plaintiff, who had worked as a driver for defendant car service, commenced this small claims action to recover the principal sum of $2,800. At a non-jury trial, plaintiff testified that defendant had failed to pay him all the wages he was due under the parties' oral employment agreement, and had wrongfully failed to repay a security deposit it held on his behalf, after his employment for defendant had terminated. Defendant's witnesses asserted that plaintiff had been an independent contractor, not an employee, and claimed that plaintiff had been paid all the money he was owed. Following the trial, the Civil Court awarded judgment in favor of plaintiff in the principal sum of $1,804, and this appeal by defendant ensued.

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, 545 [1990]). 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]). 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 opportunity 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]).

Here, based on the evidence presented, the Civil Court apparently found plaintiff's testimony to be more credible than that of defendant's witnesses. Since the court's determination was amply supported by the evidence, we conclude that the judgment rendered substantial justice between the parties according to the rules and principles of substantive law (CCA 1804, 1807). Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: February 08, 2013

20130208

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