Goldstein v Kane

[*1] Goldstein v Kane 2012 NY Slip Op 50390(U) Decided on March 1, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 1, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and ALIOTTA, JJ
2011-2112 Q C.

Steven Goldstein, Appellant,

against

E. Sarah Kane, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered June 30, 2011. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and judgment is directed to be entered in favor of plaintiff in the principal sum of $2,700.

Plaintiff commenced this action to recover the sum of $17,000, for property defendant allegedly had taken from him, and the sum of $6,000, which amount plaintiff
allegedly had given defendant to hold for his benefit, but which she had failed to return. After a nonjury trial, the Civil Court, among other things, dismissed the complaint.

As to plaintiff's cause of action seeking the principal sum of $17,000 for conversion of property, the issue presented was one of credibility and the resolution thereof was for the trier of fact, as it had the opportunity to observe and evaluate the testimony and demeanor of the witnesses (see McGuirk v Mugs Pub, 250 AD2d 824 [1998]; Richards Home Ctr. & Lbr. v Kraft, 199 AD2d 254 [1993]). The court's decision should not be disturbed on appeal unless it is obvious that the decision could not have been reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). Here, the Civil Court [*2]credited defendant's version of the facts regarding plaintiff's claim that defendant had taken clothing and two fur coats from his apartment. We find no basis to disturb so much of the determination as dismissed the cause of action for conversion of property. With respect to the cause of action seeking the return of money, defendant admitted at trial that plaintiff had given her $8,700 to hold for him and that she had returned only $6,000. Consequently, plaintiff is entitled to recover the principal sum of $2,700.

Accordingly, the judgment is reversed and judgment is directed to be entered in favor of plaintiff in the principal sum of $2,700.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 01, 2012