Accardo v Monahan

[*1] Accardo v Monahan 2012 NY Slip Op 52318(U) Decided on December 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : LaCAVA, J.P., IANNACCI and LaSALLE, JJ
.

Thomas Accardo, Respondent,

against

Brian S. Monahan, Defendant, -and- TANK MASTERS, INC., Appellant.

Appeal from a judgment of the City Court of Middletown, Orange County (Steven W. Brockett, J.), entered October 13, 2010. The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of $5,000 as against defendant Tank Masters, Inc.

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

In June 2007, plaintiff asked defendant Tank Masters, Inc. (Tank Masters) to conduct a test of an underground fuel tank located on a residential property that he was considering purchasing, in order to determine whether there was any oil leakage from the tank. Tank Masters performed the test, and informed plaintiff that the tank had "passed." Plaintiff ultimately purchased the property and, in March 2009, requested that Tank Masters replace the underground tank with an above-ground tank. During the replacement process, Tank Masters discovered that the underground tank was severely corroded and leaking. Plaintiff filed a claim with his insurer, which denied coverage after an engineering firm and laboratory it had retained to analyze the soil underlying the tank determined that there was long-term corrosion of the shell of the tank and that the leakage had occurred between 3.45 and 7.45 years prior to the analysis, or some time between 2002 and 2006. Thereafter, plaintiff commenced this small claims action against defendants Tank Masters and Brian S. Monahan, an employee of the corporate defendant, to recover the sum of $5,000 for "negligent testing of underground fuel storage tank." Following a nonjury trial, the City Court dismissed the action against defendant Monahan, and awarded plaintiff the principal sum of $5,000 as against defendant Tank Masters.

Our review is limited to determining whether substantial justice was done between plaintiff and Tank Masters according to the rules and principles of substantive law (UCCA 1807; Moses v Randolph, 236 AD2d 706, 707 [1997]). The decision of a 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 (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). Moreover, the determination of a trier of fact as to issues of credibility is given [*2]substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d 125, 126 [2000]).

As Tank Masters concedes on appeal, it did not object at trial to the qualifications of plaintiff's expert and, therefore, failed to preserve for appellate review its current objections to the admissibility of plaintiff's expert's testimony on the ground that he was not qualified to render an opinion (see Smith v City of New York, 238 AD2d 500 [1997]; Kwasny v Feinberg, 157 AD2d 396 [1990]). In any event, any objections to the expert's qualifications would go to the weight to be given his testimony and not to its admissibility (see Smith, 238 AD2d 500). Similarly, Tank Masters did not object at trial, as it does on appeal, to the admissibility of the letter to plaintiff's insurance company, in which the engineering firm and laboratory reported the results of the testing performed on the soil sample. We note that small claims courts are not bound by statutory provisions or rules of practice, procedure, pleading or evidence, so long as "substantial justice [is done] between the parties according to the rules of substantive law" (see UCCA 1804). In our opinion, the record supports the City Court's determination, and there is therefore no basis for this court to disturb the judgment insofar as appealed from.

Accordingly, the judgment, insofar as appealed from, is affirmed.

LaCava, J.P., Iannacci and LaSalle, JJ., concur.
Decision Date: December 13, 2012