Retamozzo v Bluestone

[*1] Retamozzo v Bluestone 2010 NY Slip Op 51271(U) [28 Misc 3d 131(A)] Decided on July 19, 2010 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 19, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
570343/10.

Armand Retamozzo, Plaintiff-Appellant,

against

Andrew Lavoot Bluestone, Defendant-Respondent.

Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), entered on or about September 17, 2009, after trial, in favor of defendant dismissing the action. Defendant appeals from a prior order of the same court (Tanya R. Kennedy, J.), dated August 10, 2009, which denied his motion to dismiss the action.

Per Curiam.

Judgment (Arlene P. Bluth, J.), entered on or about September 17, 2009, affirmed, without costs. Appeal from order (Tanya R. Kennedy, J.), dated August 10, 2009, dismissed, without costs, since the right to appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241 [1976]).

Applying the narrow standard of review governing appeals in small claims actions (see CCA 1807), and giving due deference to the trial court's findings of fact and credibility determinations (see Williams v Roper, 269 AD2d 125, 126 [2000], lv dismissed 95 NY2d 898 [2000]), we sustain the dismissal after trial of plaintiff's action. It was within the province of the trial court, as fact-finder, to discredit the unsubstantiated testimony offered by plaintiff in support of his conversion claim and to credit the testimony of defendant that he returned plaintiff's "digital documents." We note, too, that plaintiff did not seriously dispute that he maintained a hard copy of the trial transcript that was apparently stored on the DVD that plaintiff claimed defendant converted. We have considered and rejected plaintiff's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 19, 2010