Deutsch v JBE Paving Gen. Contr.

[*1] Deutsch v JBE Paving Gen. Contr. 2004 NY Slip Op 50562(U) Decided on June 4, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
NO.2003-994 W C

ISABEL DEUTSCH, Appellant,

against

JBE PAVING GENERAL CONTRACTOR c/o John Barbara and EDSON FONSECA, Respondents.

Appeal by plaintiff from a small claims judgment of the City Court, City of Mount Vernon, Westchester County (A. Seiden, J.), entered July 29, 2003, in favor of defendants dismissing plaintiff's action.

Judgment unanimously affirmed without costs.

Plaintiff commenced the instant small claims action to recover the sum of money which she paid defendant JBE Paving General Contractor to repair her driveway. Plaintiff alleged that defendants breached their oral contract to remove the elevation in her driveway so that it would be level with the garage floor and thereby prevent water from running into the garage. Both John Barbara, owner of defendant JBE Paving General Contractor and defendant Fonseca, who recommended defendant Barbara to plaintiff, testified that plaintiff only agreed to have the driveway resurfaced after Mr. Barbara told her the cost of replacing the driveway in order for it to be level with the garage floor. This presented an issue of credibility as to what the parties agreed to. We are of the opinion that the lower court's resolution of said issue of credibility in favor of defendants was based on a fair interpretation of the evidence and should not be disturbed on appeal (see Jones v Hart, 233 AD2d 297 [1996]; DiSalvo v Ordway, 208 AD2d 798 [1994]). Thus, substantial justice was done between the parties in accordance with the rules and principles of substantive law (see UCCA 1807).
Decision Date: June 04, 2004