Brophy v Roberts

[*1] Brophy v Roberts 2012 NY Slip Op 52048(U) Decided on October 18, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and IANNACCI, JJ
2011-757 S C. October 18, 2012

Clifford Brophy, Respondent,

against

Kay Roberts, Appellant.

Appeal from a judgment of the Justice Court of the Town of Southampton, Suffolk County (Andrea H. Schiavoni, J.), entered May 28, 2010. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $739.

ORDERED that the judgment is reversed, without costs, and the action is dismissed.

Plaintiff commenced this small claims action to recover the sum of $1,489.89, representing the unpaid balance defendant allegedly owed plaintiff for landscaping services. After a nonjury trial, the Justice Court awarded plaintiff the principal sum of $739.

Defendant testified that she had never asked plaintiff to perform the extra work for which plaintiff seeks to recover, and that plaintiff's foreman had lied about the alleged extra work plaintiff claimed to have performed beyond the original estimate of $3,240. Defendant submitted into evidence plaintiff's invoice, which indicated that the work had been done by seven men over three days, as well as a letter plaintiff had sent in which plaintiff stated that eight men had been working for 3½ days and which mentioned two additional days of work. As this contradictory documentary evidence undermines plaintiff's credibility, we find that the judgment in favor of plaintiff did not render substantial justice between the parties according to the rules and principles of substantive law (see UJCA 1804, 1807; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). Accordingly, the judgment is reversed and the action is dismissed.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: October 18, 2012