Slomin's, Inc. v Trerotola

[*1] Slomin's, Inc. v Trerotola 2009 NY Slip Op 52442(U) [25 Misc 3d 140(A)] Decided on December 1, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 1, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and MOLIA, JJ
2008-718 W C.

Slomin's, Inc., Respondent,

against

Mary Trerotola, Appellant.

Appeal from a judgment of the City Court of White Plains, Westchester County (Eric P. Press, J.), entered July 5, 2007. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $158.80 and dismissed defendant's counterclaim.

ORDERED that the judgment is affirmed without costs.

In this commercial claims action for breach of security system installation and monitoring agreements, plaintiff sought to recover the sum of $1,084.52, representing the balance allegedly due for monitoring the system and for the value of the equipment as set forth in the agreements. Defendant filed a counterclaim, seeking return of the money she paid pursuant to the agreements, alleging, inter alia, breach of contract and fraudulent inducement.

At trial, plaintiff's sales manager introduced a service agreement, an equipment sales agreement, and a central office monitoring agreement, all executed by defendant on November 15, 2001, wherein defendant agreed to make quarterly payments for the installation, maintenance and monitoring of a security system, components of which were already in place in defendant's home because the previous homeowner had been plaintiff's customer. Defendant testified that prior to executing the contracts, she had insisted that, in addition to the existing equipment, she wanted window contacts and had been assured by plaintiff's sales representative that window contacts would be installed. However, when the installer arrived for the installation, he told her that the window contacts could not be installed on the windows in her home. Although she called plaintiff's office and was told that a sales representative would visit her, this never occurred. She also testified that she called plaintiff's office several times because she did not understand what she was paying for, but no adequate response from plaintiff was forthcoming. Nevertheless, she continued to make payment on the contracts until November 22, 2004 because, [*2]she testified, she did not want to have a bad credit rating. At the conclusion of the nonjury trial, the City Court held that although it was clear that plaintiff had materially breached the equipment agreement by failing to provide window contacts, defendant, by electing to continue to pay and to accept benefits under the agreements, had waived her right to bring an action against plaintiff for the breach, and therefore could not prevail on the counterclaim. The City Court declined to award plaintiff the balance due on the equipment agreement, but awarded plaintiff the principal sum of $158.80, the equivalent of two quarterly installments due on the monitoring agreement. This appeal by defendant ensued.

The standard of review on an appeal of a commercial claims judgment is limited to whether the trial court provided the parties with substantial justice according to the rules and principles of substantive law (see UCCA 1804-A, 1807-A; see also Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). "[T]he decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses" (Williams v Roper, 269 AD2d at 126, quoting Claridge Gardens v Menotti, 160 AD2d 544, 544-545 [1990] [internal quotations marks omitted]). This standard applies with even greater force to judgments rendered in the Commercial Claims Part of the court given the limited standard of review (see UCCA 1807-A; Williams v Roper, 269 AD2d at 126). Furthermore, the determination of the trier of fact as to issues of credibility is given substantial deference as the trial court had the opportunity to observe and evaluate the testimony and demeanor of the witnesses, thereby affording said court a better perspective from which to evaluate the credibility of the witnesses (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). Even if an appellate court differs with a commercial claims court on an arguable point of fact or law, the appellate court may 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]; Dourado v Jordan, 2002 NY Slip Op 40394[U] [App Term, 9th & 10th Jud Dists 2002]).

Although defendant claims that she was fraudulently induced to enter into the contracts by plaintiff's sales representatives' alleged misrepresentations, her counterclaim does not sound in fraud but rather in breach of contract (see Tesoro Petroleum Corp. v Holborn Oil Co., 108 AD2d 607 [1985]). Even assuming that defendant had a viable claim, she admittedly failed to take prompt action after becoming aware of her claim and, instead, continued to make all payments due and accept the benefits of the contract. Her belated conduct in waiting some 4½ years before raising the issues presented herein, and then doing so only in response to the instant law suit, constitutes a waiver of any claim she may have had (see R & A Food
Servs. v Halmar Equities, 278 AD2d 398 [2000]; Northeast Sort & Fulfillment Corp. v Reader's Digest Assn., 261 AD2d 459 [1999]).

In view of the foregoing, we find no basis to disturb the City Court's award of the principal sum of $158.80 in favor of plaintiff, and its dismissal of defendant's counterclaim.

Accordingly, the judgment is affirmed. [*3]

Nicolai, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: December 01, 2009