Beizer v Continental Owners Corp.

[*1] Beizer v Continental Owners Corp. 2009 NY Slip Op 52268(U) [25 Misc 3d 136(A)] Decided on November 5, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-1101 Q C.

Harriet Beizer, Appellant-Respondent,

against

Continental Owners Corp., Respondent-Appellant, -and- NEW YORK COOLING TOWERS, INC., Defendant.

Appeal and cross appeal from a judgment of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered May 8, 2007. The judgment, after a nonjury trial, insofar as appealed from by plaintiff, awarded defendant Continental Owners Corp. the principal sum of $648 on its counterclaim. The judgment, insofar as cross-appealed from by defendant Continental Owners Corp. on the ground of inadequacy, awarded said defendant the principal sum of only $648 on its counterclaim.

ORDERED that the cross appeal is dismissed; and it is further,

ORDERED that the judgment, insofar as appealed from by plaintiff, is affirmed without costs.

Plaintiff commenced the instant small claims action against defendants for breach of contract, alleging that she had contracted for the installation in her apartment, apartment 12A, of an 800-unit size air conditioner but a smaller unit had been installed. At the nonjury trial, plaintiff submitted into evidence an invoice which indicated that defendant New York Cooling [*2]Towers, Inc. would be installing an air conditioning unit, at a cost of $1,148, in plaintiff's apartment. The invoice did not indicate what size unit was to be installed. The invoice further indicated that plaintiff had made a deposit of $500 for said installation to defendant Continental Owners Corp. (Continental), the cooperative corporation which owned the premises. Plaintiff testified that she had contracted for a larger size air conditioning unit than that which had been installed.

The deference which an appellate court normally accords to the credibility determinations of a trial court "applies with greater force" in small claims proceedings, given the limited scope of review and the often attenuated record available on appeal (see Williams v Roper, 269 AD2d 125, 126 [2000]). Even if the appellate court differs with the small claims court on an arguable point of fact or law, it should not reverse absent a showing that there is no support in the record for the trial court's conclusions or that they are otherwise so clearly erroneous as to deny substantial justice (see Payne v Biglin, 2 Misc 3d 127[A], 2003 NY Slip Op 51694[U] [App Term, 9th & 10th Jud Dists 2003]). In the instant case, after hearing the testimony, the Civil Court found that plaintiff's testimony was not credible. We find no reason to disturb the trial court's determination regarding plaintiff's credibility.

In view of the foregoing, the judgment, insofar as appealed from by plaintiff, in awarding Continental the sum of $648 on its counterclaim for the unpaid balance due on the air conditioner, rendered substantial justice between the parties in accordance with the rules and principles of substantive law (see CCA 1807).

While Continental's notice of cross appeal stated that Continental was cross-appealing from "so much of the Judgment as did not award Continental Owners Corp., a judgment on its counterclaim for attorney's fees," Continental did not assert in its brief any arguments as to why the Civil Court erred in not awarding it attorney's fees. Rather, Continental's brief asserted that the judgment should be affirmed. As a result, the cross appeal is dismissed as abandoned since Continental does not seek modification of the judgment on its counterclaim (see Chia Yun Tsai v Duane Reade, Inc., 63 AD3d 1096 [2009]; Sirma v Beach, 59 AD3d 611 [2009]).

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 05, 2009