Ross v Moskowitz

[*1] Ross v Moskowitz 2013 NY Slip Op 51380(U) Decided on August 8, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 8, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT:: LaSALLE, J.P., NICOLAI and IANNACCI, JJ
2011-2966 S C.

Diana Ross, Appellant,

against

Phyllis Moskowitz, Respondent.

Appeal from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered June 17, 2011. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this action to recover defendant's 50% share of partnership liability. The record indicates that the parties had entered into an oral partnership agreement in July of 2008 to operate a sales business, wherein they agreed to equally share in any profits made or losses incurred, and that, in January of 2009, defendant expressed an interest in resigning from the partnership. At a nonjury trial, defendant asserted that plaintiff had released her from all liability pertaining to the debt incurred by the partnership. Following the trial, the District Court awarded judgment to defendant dismissing the complaint.

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]). The determination of a trier [*2]of fact as to issues of credibility is given 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]; Kincade v Kincade, 178 AD2d 510 [1991]). As the record supports the determination of the District Court, we find no basis to disturb the judgment.

Accordingly, the judgment is affirmed.

LaSalle, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: August 08, 2013