Harrington v Levitzke

[*1] Harrington v Levitzke 2004 NY Slip Op 50277(U) Decided on April 9, 2004 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:DECIDED April 9, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and GOLIA, JJ.
NO. 2003-302 K C

MICHAEL HARRINGTON, Appellant,

against

DR. BRETT LEVITZKE and BROOKLYN VETERINARY EMERGENCY SERVICES, INC., Respondents.

Appeal by plaintiff from a judgment of the Civil Court, Kings County (D. Silber, J.), entered July 29, 2002, in favor of defendants dismissing the complaint.

Judgment unanimously affirmed without costs.

In this veterinary malpractice action, a review of the record, including the court's evaluation of the experts' opinions, establishes that the court below properly found for defendants. In 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 (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Islamic Ctr. of Harrison v Islamic Science Found., 262 AD2d 362 [1999]; Claridge Gardens v Menotti, 160 AD2d 544, 544-545 [1990]). With regard to issues of credibility, the Appellate Division has repeatedly held that "a trial court's resolution of questions of credibility is particularly within its domain and should not be disturbed on appeal if supported by the record" (Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). Moreover, the court below was able to directly observe and evaluate the testimony and demeanor of the witness, affording the trial court a better position from which to evaluate the credibility of the plaintiff and defendant Levitzske. Further, we find that the court maintained a balanced and impartial demeanor during the trial and considered relevant and competent evidence before rendering a verdict. [*2]

The plaintiff's remaining contentions are without merit.
Decision Date: April 09, 2004