Katz v Rodolfo Valentin Salon, Spa & Hairpieces

[*1] Katz v Rodolfo Valentin Salon, Spa & Hairpieces 2004 NY Slip Op 50312(U) Decided on April 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:DECIDED April 20, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., LIFSON and SKELOS, JJ.
NO. 2003-811 N C

FAYE S. KATZ, Respondent,

against

RODOLFO VALENTIN SALON, SPA AND HAIRPIECES INC., Appellant.

Appeal by defendant from a small claims judgment of the District Court, Nassau County (H. Miller, J.), entered October 22, 2002, in favor of plaintiff against defendant Rodolfo Valentin Salon, Spa and Hairpieces Inc. in the principal sum of $3,000, and from an order of the same court, dated February 24, 2003, which, in effect, granted plaintiff's motion to amend the judgment, deemed an appeal from the amended judgment, also dated October 22, 2002, which awarded plaintiff judgment against Rodolfo Valentin individually and Salon Spa and Hairpieces, Inc.

Appeal from original judgment dated October 22, 2002 unanimously dismissed.

Amended judgment unanimously affirmed without costs.

Plaintiff commenced the instant small claims action against defendant "Rodolfo Valentin Salon, Spa and Hairpieces Inc." to recover the sum of $3,000 for breach of contract in that a custom human hair wig which she ordered did not properly fit and was made of inferior quality hair. In a counterclaim, defendant, in the name of "Rodolfo Valentin Salon, Spa & Hairpieces Inc." sought $3,000 for losses suffered as a result of defendant's staff having to miss work due to this action. Following a trial, the court initially entered judgment in favor of plaintiff against "Rodolfo Valentin Salon, Spa and Hairpieces Inc.", and dismissed the counterclaim. The court subsequently granted plaintiff's post-trial motion to amend the judgment to reflect the true name of the corporate defendant, which was "Salon Spa and Hairpieces, Inc." The court further noted [*2]that a review of the small claims complaint established that plaintiff had in fact sued both the individual defendant and the corporate defendant, and amended the judgment to reflect the fact that there were two defendants, and that judgment should be awarded against both.

It is the opinion of this court that the court below acted properly in amending the judgment to reflect that it was rendered against both the individual and corporate defendants (see UDCA 1813 [a], UDCA 1814; CPLR 5019).

Moreover, a review of the record on appeal indicates that substantial justice was done between the parties according to the rules and principles of substantive law (UDCA 1807). It is noted that the record indicates that plaintiff rightfully rejected the wig (see UCC 2-602) and was therefore entitled to recover its purchase price (see UCC 2-711 [1]), subject to the monetary limitations of the court.

Furthermore, as to the conduct of the trial itself, we note that there is nothing in the trial record to support defendant's assertions, offered for the first time on appeal, that the trial court abused its discretion in failing to grant it a brief adjournment. Factual assertions contained in the appellate briefs are dehors the record and may not be considered by this court on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]).
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Decision Date: April 20, 2004