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Tony Pedro, Respondent v. Anthony Galletta

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


February 11, 2013

TONY PEDRO, RESPONDENT, --
v.
ANTHONY GALLETTA, APPELLANT.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered June 16, 2011.

Pedro v Galletta

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 11, 2013

PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ

The judgment, after a non-jury trial, awarded plaintiff the principal sum of $6,900.

ORDERED that the judgment is affirmed, without costs.

In this action to recover the sum of $6,900, plaintiff alleged that defendant had sold him a car with the representation that the frame of the car was in good condition when, in fact, defendant knew that the car's frame had problems. At a non-jury trial, plaintiff testified that, in November of 2009, he had bought a 1964 Corvette convertible from defendant for the sum of $26,000. He asked defendant about the frame and was assured that there were no problems with it. He did not drive the car during the winter of 2009 but, in April of 2010, when he took it out for a drive, he noticed that the entire rear of the car was moving. He brought the car to a repair shop and paid $6,900 to have the frame repaired.

Defendant testified that, after he had bought the car, he had it checked at a restoration shop and was told that the car's frame needed work, so he had it fixed. After the repairs were done, he inspected the car on a lift and test-drove it, and everything seemed fine. About a month later, he sold the car to plaintiff.

The Civil Court found that plaintiff had inquired of defendant about the condition of the frame of the vehicle at the time of purchase and that defendant had failed to reveal that there had been prior damage to it, which failure had induced plaintiff to purchase the vehicle without further investigation. Consequently, judgment was entered in favor of plaintiff in the principal sum of $6,900.

"On a bench trial, the decision of the 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, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses" (Claridge Gardens v Menotti, 160 AD2d 544, 544-545 [1990]). Here, defendant knowingly failed to accurately disclose the condition of the car's frame upon plaintiff's inquiry. Consequently, we find no reason to disturb the court's determination.

We note that we do not consider those items annexed to defendant's brief which, not having been presented to the Civil Court, are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: February 11, 2013

20130211

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