Advanced Remodeling & Mgt. Corp. v Clemente

[*1] Advanced Remodeling & Mgt. Corp. v Clemente 2006 NY Slip Op 52027(U) [13 Misc 3d 134(A)] Decided on October 5, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and LIPPMAN, JJ
2005-1390 S C.

Advanced Remodeling & Management Corp., Appellant,

against

Jose Clemente d/b/a Jose Clemente Construction And Jose Clemente Construction, Inc., Respondents.

Appeal from a decision of the District Court of Suffolk County, First District (James P. Flanagan, J.), dated January 6, 2005, deemed (see CPLR 5520 [c]) an appeal from a judgment of the same court entered June 21, 2005. The judgment, after a nonjury trial, dismissed plaintiff's complaint and awarded defendants the principal sum of $11,372 on their first counterclaim.

Judgment affirmed without costs.

Plaintiff commenced this action to recover damages for breach of a contract to build a fireplace in a house that plaintiff was constructing. In addition to denying liability, defendants interposed counterclaims, alleging, inter alia, that plaintiff breached the contract. After a nonjury trial, the court found that the work was performed in a workmanlike manner and was substantially completed, and that plaintiff breached the contract. Accordingly, the court dismissed plaintiff's complaint and awarded judgment upon the counterclaim for breach of contract. This appeal by plaintiff ensued.

"A court's determination after a nonjury trial should be upheld if it is based on a fair interpretation of the evidence" (Eickler v Pecora, 12 AD3d 635, 636 [2004]; Martinez v Dushko, 7 AD3d 584, 585 [2004]; see also Hernandez v Bentinck, 17 AD3d 532 [2005]). Further, "[i]t is well settled that where, as here, a case has been tried without a jury, this Court's power to review the evidence is as broad as that of the trial court, bearing in mind, of course, that due regard must be given to the decision of the Trial Judge who was in a position to assess the evidence and the credibility of the witnesses'" (Koslowski v Koslowski, 297 AD2d 784, 784-785 [2002] [citations [*2]omitted]; see also Vizzari v Hernandez, 1 AD3d 431 [2003]). Upon our review of the evidence
adduced at trial, we are of the opinion that the judgment was based upon a fair interpretation of the evidence and should be affirmed. We have reviewed plaintiff's other contentions and find them to be without merit.

Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: October 5, 2006