Lorber v SLR Indus., Inc.

[*1] Lorber v SLR Indus., Inc. 2008 NY Slip Op 52356(U) [21 Misc 3d 140(A)] Decided on November 19, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : McCABE, J.P., TANENBAUM and MOLIA, JJ
2007-1433 S C.

Rochelle Lorber, Appellant,

against

SLR Industries, Inc. and LOUIS LABRIOLA, Respondents.

Appeal from judgments of the District Court of Suffolk County, Second District (Patrick J. Barton, J.), entered June 1, 2007. The judgments, after a joint trial of two actions, dismissed Rochelle Lorber's claim against SLR Industries, Inc. and Louis Labriola, and awarded SLR Industries, Inc. $2,650 on its claim against Rochelle Lorber.

Judgments affirmed without costs.

Rochelle Lorber commenced a small claims action against SLR Industries, Inc. and its principal, Louis Labriola, to recover $5,000 for allegedly faulty work done on a contract to replace concrete at her residence, which created puddling and tripping problems. Subsequently, SLR Industries, Inc. commenced a commercial claims action against Rochelle Lorber to recover $3,979.79 for monies due on the same contract. By order dated December 20, 2006, the court granted Lorber's motion to consolidate the two actions.

After trial, the court below credited the proof presented by SLR Industries, Inc. and Labriola, dismissed Lorber's claim and found that Lorber owed $2,650 on her contract with SLR Industries, Inc. Two judgments were subsequently entered, and Lorber appeals therefrom.

A decision rendered by a court after a nonjury trial should not be disturbed on appeal, particularly where findings of fact rest in large part on the credibility of witnesses, unless it is obvious that it could not have been reached under any fair interpretation of the evidence (e.g. Claridge Gardens v Menotti, 160 AD2d 544 [1990]). The deference accorded to a trial court's credibility determinations applies with even greater force to judgments rendered in the Small Claims Part and the Commercial Claims Part of the court, given the limited standard of review (see UDCA 1807, 1807-A; Williams v Roper, 269 AD2d 125 [2000]). We find that the decision of the court below is supported by a fair reading of the evidence. Accordingly, the judgments are affirmed. [*2]

McCabe, J.P., and Molia, J., concur.

Tanenbaum, J., dissents in a separate memorandum.

Tanenbaum, J., dissents and votes to reverse the judgments and order a new trial in the following memorandum:

The photographic evidence submitted at trial supports appellant Lorber's claim that the concrete work was defective. Consequently, I find that the decision of the court below is against the weight of the credible evidence and that, therefore, substantial justice was not done between the parties (UDCA 1807, 1807-A). Accordingly, I vote to reverse the judgments and remand the entire action to the court below for a new trial.
Decision Date: November 19, 2008