Maskanian v Gadol

[*1] Maskanian v Gadol 2015 NY Slip Op 50159(U) Decided on February 25, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 25, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Shulman, Ling-Cohan, JJ.
570048/14

Bahram Maskanian, Plaintiff-Appellant, -

against

Elmira Gadol, Defendant-Respondent.

Plaintiff purports to appeals from a decision and order (one paper) of the Civil Court of the City of New York, New York County (James E. d'Auguste, J.), entered October 10, 2013, after a nonjury trial, in favor of defendant dismissing the complaint.

Per Curiam.

Appeal from decision and order (one paper) (James E. d'Auguste, J.), entered October 10, 2013, deemed an appeal from the ensuing judgment (same Judge), entered June 23, 2014, and so considered (see CPLR 5520[c]), judgment affirmed, without costs, for the reasons stated by James E. d'Auguste, J. at Civil Court.

The trial court's express factual findings as to the terms and scope of the parties' oral barter agreement and the parties' levels of performance thereunder were based largely on witness credibility and are supported by a fair interpretation of the evidence (see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]). The court, as factfinder, was warranted in rejecting plaintiff's broad interpretation of the agreement as allowing him to make use of defendant's dental services "anytime [he] like[s] ... every six months" over an indeterminate time, purported terms which, even if agreed to, would run afoul of the statute of frauds. Nor is a contrary result required by the ambiguous provisions of the so-called "Transfer of Ownership Certificate" ultimately signed by defendant, a document whose probative worth the trial court properly "discount[ed]" upon its finding that the document had been "coercively obtained" by plaintiff.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: February 25, 2015