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Ali Chamois, Appellant v. Mark Gargiulo

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


April 4, 2013

ALI CHAMOIS, APPELLANT, --
v.
MARK GARGIULO, RESPONDENT.

Appeal from a judgment of the Justice Court of the Town of Chester, Orange County (Janet A. Haislip, J.), entered April 14, 2011.

Chamois v Gargiulo

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 4, 2013

PRESENT: IANNACCI, J.P., MARANO and TOLBERT, JJ

The judgment, after a non-jury trial, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

In this small claims action, plaintiff seeks to recover the sum of $2,000, alleging that defendant, who had performed work for the owners of the property which adjoined plaintiff's, had, without authorization, removed forsythia bushes from plaintiff's property. After a non-jury trial, at which both plaintiff and defendant submitted certified surveys purportedly demonstrating that the bushes were located within their respective property boundary lines, the Justice Court dismissed the action, finding that plaintiff had failed to satisfy her burden of establishing that the bushes had been removed from her property. We affirm.

We note initially that the disputed issue of the property boundary line does not divest the Small Claims Part of the Justice Court of jurisdiction over the action to the extent that the claim is for the recovery of money damages only (see UJCA 1801; Haber v Sagaria, 2002 NY Slip Op 40203[U] [App Term, 9th & 10th Jud Dists 2002]; Reynolds v Town of Greenville, NYLJ, May 19, 2000 [App Term, 9th & 10th Jud Dists]; see also Wainwright & Page Inc. v Burr & McAuley, Inc., 272 NY 130 [1936]; Mohar Realty Co. v Smith, 46 Misc 2d 849 [App Term, 2d & 11th Jud Dists 1965]).

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 (UJCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). 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 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d at 126). 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 perspective 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]). As the record supports the trial court's determination, we find no reason to disturb the judgment.

Accordingly, the judgment is affirmed.

Iannacci, J.P., Marano and Tolbert, JJ., concur. Decision Date: April 04, 2013

20130404

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