Jewelry v JR Realty Assoc. LLC

[*1] Jewelry v JR Realty Assoc. LLC 2012 NY Slip Op 50665(U) Decided on April 17, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 17, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570973/11.

Jahan Jewelry, Plaintiff-Appellant,

against

JR Realty Associates LLC, 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 (Cynthia S. Kern, J.), entered on or about February 4, 2008, after trial, in favor of defendant dismissing the action.

Per Curiam.

Judgment (Cynthia S. Kern, J.), entered on or about February 4, 2008, affirmed, without costs.

A judgment rendered in the Small Claims Part of the Civil Court will be sustained on appeal unless it is shown that "substantial justice has not been done between the parties according to the rules and principles of substantive law" (CCA 1807; see Williams v Roper, 269 AD2d 125 [2000], lv dismissed 95 NY2d 898 [2000]). Applying that limited review standard here, and since there is record support for the trial court's finding, based on the "credible evidence," that the repair costs incurred by defendant-landlord exceeded the plaintiff-tenant's rent security deposit, we find no basis to substitute our judgment for that of the trial court in dismissing the action. It is of some concern that the documents submitted to and considered by the trial court were not marked as exhibits for identification and, thus, are not included in the record on appeal. On balance, however, the lax evidentiary procedure followed at trial, although improper, does not require a new trial in the circumstances of this case, where the evidentiary issue is not specifically urged by plaintiff as a basis for reversal on appeal and the existing record is otherwise sufficiently developed to permit informed appellate review of the court's credibility-based determination (see Gilbert v Mendel, NYLJ, July 10, 1990, at 21, col 4 [App Term, 1st Dept]).

In affirming, we note plaintiff's substantial (four-year) delay in perfecting the appeal.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 17, 2012