New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
March 15, 2013
MATTHEW DEREK LEE, APPELLANT, --
INDUSTRIAL MANAGEMENT & TRAINING INSTITUTE (I.M.T.I.), RESPONDENT.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered January 11, 2012.
Lee v Industrial Mgt. & Training Inst. (I.M.T.I.)
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 15, 2013
PRESENT: RIOS, J.P., PESCE and ALIOTTA, JJ
The judgment, after a non-jury trial, dismissed the complaint.
ORDERED that the judgment is affirmed, without costs.
Plaintiff had been enrolled in, but failed to complete, an electrical technician course offered by defendant Industrial Management & Training Institute. He commenced this action to recover damages based on defendant's retention of that portion of his tuition payment which he had financed through a bank loan; plaintiff also asserted that his credit, and that of his daughter, who had co-signed on the loan, had been damaged as a result of defendant's retention of the tuition money.
At a non-jury trial, the parties offered differing testimony as to the reason for plaintiff's failure to complete the electrical technician course. Whereas plaintiff claimed that, following his return from a leave of absence, he had been expelled, defendant asserted that plaintiff, who had failed to comply with attendance requirements, had been offered, but declined, an opportunity for reinstatement in defendant school. The complaint was dismissed upon a finding by the Civil Court that plaintiff had failed to meet defendant's conditions of attendance, and that he had not taken advantage of an opportunity to re-register in the electrical technician program. "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 ; see also Vizzari v State of New York, 184 AD2d 564 ; Kincade v Kincade, 178 AD2d 510 ).
As plaintiff failed to establish any other basis of entitlement to the return of his tuition payments, we find no basis to disturb the Civil Court's dismissal of the complaint.
Accordingly, the judgment is affirmed.
Rios, J.P., Pesce and Aliotta, JJ., concur. Decision Date: March 15, 2013
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