All State Painting, Inc. v Ambrose

[*1] All State Painting, Inc. v Ambrose 2006 NY Slip Op 51865(U) [13 Misc 3d 131(A)] Decided on September 28, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 28, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-1794 W C.

All State Painting, Inc., Appellant,

against

Teresa Ambrose, Respondent.

Appeal from a judgment of the City Court of Peekskill, Westchester County (William L. Maher, J.), entered on December 1, 2004. The judgment, after a nonjury trial, dismissed plaintiff's claim and awarded defendant $5,000 on her counterclaim.

Judgment affirmed without costs.

In this commercial claims action, plaintiff sought to recover the sum of $1,498 representing the balance due on a contract to paint the exterior of plaintiff's home. The plaintiff failed to prove its case by a preponderance of the evidence. This matter presents an issue of credibility which is to be resolved by the trier of the facts, who saw and heard the witnesses, and will not be disturbed on appeal if it is supported by a fair interpretation of the evidence (Jones v Hart, 233 AD2d 297 [1996]). Here, the court had photographic evidence as well as the testimony of the parties. Therefore, the court's conclusion that plaintiff did the work improperly should not be disturbed. Further, despite plaintiff's contention to the contrary, a review of the record discloses that plaintiff had a fair opportunity to cross-examine the defendant and that it did in fact do so.

The amount awarded to defendant on her counterclaim was proper. The defective nature of the work is apparent and the two estimates are prima facie evidence of the reasonable value and necessity of such services and repairs (UCCA 1804-A). One of the estimates describes in detail the extensive corrective work that is necessary just to undo the damage caused by plaintiff before the exterior of the house can be repainted. Consequently, substantial justice was done between the parties according to the rules and principles of substantive law (UCCA 1807-A). [*2]

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: September 28, 2006