Tiflinskiy v Bell

[*1] Tiflinskiy v Bell 2009 NY Slip Op 52450(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 This opinion is uncorrected and will not be published in the printed Official Reports.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: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and GOLIA, JJ
2008-2286 K C.

Leonid Tiflinskiy, Appellant,

against

Mina Bell, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered August 18, 2008. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is affirmed without costs.

In this small claims action, plaintiff sought to recover damages for defendant dentist's allegedly improper repair of dentures which, plaintiff claimed, broke repeatedly and ultimately required replacement by another dentist. Defendant testified that, in addition to repairing the dentures, she had replaced the upper denture at no cost to plaintiff. The trial court dismissed the action, finding that plaintiff had failed to establish a prima facie case.

Our review is limited to determining whether substantial justice was done between the parties according to the rules and principles of substantive law (CCA 1807). 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]).

Resolution of issues of credibility is for the trier of fact, since it had the opportunity to observe and evaluate the testimony and demeanor of the witnesses (seeMcGuirk v Mugs Pub, 250 AD2d 824 [1998]; Richard's Home Ctr. & Lbr. v Kraft, 199 AD2d 254 [1993]), and its decision should not be disturbed on appeal unless it is obvious that said determination could not have been reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). 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 (see Williams v Roper, 269 AD2d 125, 126 [*2][2000]). In the instant case, it appears that the trial court credited defendant's version of the facts, and there is no reason for this court to disturb said credibility determination.

In any event, the Civil Court properly found that plaintiff did not establish that defendant was liable for dental malpractice. Although plaintiff had an expert testify in his behalf, the expert failed to definitively establish that defendant's conduct departed from the requisite standard of dental practice during plaintiff's dental treatment, and that any such departure was a substantial factor in bringing about plaintiff's injury (see Awkar v Zegarelli, 15 Misc 3d 137[A], 2007 NY Slip Op 50891[U] [App Term, 9th & 10th Jud Dists 2007]; Davis v Levine, 4 Misc 3d 143[A], 2004 NY Slip Op 51101[U] [App Term, 2d & 11th Jud Dists 2004]).

Plaintiff contends on appeal that he was confused about the trial process because he was not represented by counsel or provided with a Russian interpreter at trial. We note that an inexperienced litigant who chooses to represent himself or herself at trial does so with a degree of risk, and a litigant's decision to proceed without counsel does not confer any greater rights than those afforded to other litigants (see Sloninski v Weston, 232 AD2d 913, 914 [1996]; accord Matter of Hanehan v Hanehan, 8 AD3d 712 [2004]; see also Muntaner v Herman, 23 Misc 3d 133[A], 2009 NY Slip Op 50746[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Moreover, there is nothing in the trial transcript to indicate that plaintiff could not adequately express himself or did not understand what was being said, such that he was unable to present his case.

Accordingly, contrary to plaintiff's contention, the Civil Court did not err in dismissing the action. Since substantial justice was done between the parties according to the rules and principles of substantive law (CCA 1804, 1807), the judgment is affirmed.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 01, 2009