Thomas v Hylton

[*1] Thomas v Hylton 2004 NY Slip Op 51431(U) Decided on November 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-82 N C

KAREN THOMAS, Respondent,

against

ROSE MARIE HYLTON, Appellant.

Appeal by defendant from a small claims judgment of the District Court, Nassau County (S. Kluewer, J.), entered August 15, 2003, awarding plaintiff the principal sum of $910.

Judgment unanimously affirmed without costs.

Substantial justice was done between the parties in this small claims action for money due in accordance with the rules and principles of substantive law (UDCA 1804, 1807). On the record before this court, the credibility determinations and award of the court below are supported by a fair interpretation of the evidence, and thus will not be disturbed upon appeal (Jones v Hart, 233 AD2d 297 [1996]; see also DiSalvo v Ordway, 208 AD2d 798 [1994]). It must be noted that defendant herself testified that
she owed money to plaintiff upon a $2,000 loan, and the parties differed only over the amount.

On appeal, defendant argues that she does not owe plaintiff any money and seeks to introduce new evidence of further payments. Said evidence, produced for the first time on appeal, may not be considered at this stage of the proceedings (see Matter of ELRAC, Inc. v Edwards, 270 AD2d 414 [2000]; Dolson v DiPietro, 251 AD2d 535 [1998]). Defendant's remedy, if she is so advised, is to move in the court below to vacate the judgment and for a new trial on the ground of newly discovered evidence, explaining the circumstances of its discovery and why it could not have been introduced at the trial (see CPLR 5015 [a] [2]).
Decision Date: November 19, 2004