Duran v Alvarez

[*1] Duran v Alvarez 2015 NY Slip Op 50615(U) Decided on April 16, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : GARGUILO, J.P., MARANO and CONNOLLY, JJ.
2013-2658 N C

Ricardo W. Duran and EDITH SALGUERO DURAN, Respondents, -

against

Dennys S. Alvarez, Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (Terence P. Murphy, J.), entered November 14, 2013. The judgment, entered pursuant to a decision of the same court dated May 30, 2013, after a nonjury trial, awarded plaintiffs the principal sum of $7,000.

ORDERED that, on the court's own motion, the notice of appeal from the decision dated May 30, 2013 is deemed a premature notice of appeal from the judgment entered November 14, 2013 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is modified by deleting the award in favor of plaintiff Edith Salguero Duran and by providing that so much of the complaint as was asserted by that plaintiff is dismissed; as so modified, the judgment is affirmed, without costs.

In this action to, among other things, recover the sum of $7,000, representing the purchase price of a 2001 FreightLiner truck purportedly owned by defendant, plaintiffs allege that defendant defrauded them as to the true ownership of the truck at the time the truck was sold to them. After a nonjury trial, the District Court, in its May 30, 2013 decision, awarded plaintiff Ricardo Duran the principal sum of $7,000 and dismissed so much of the complaint as was asserted by plaintiff Edith Salguero Duran. A judgment, however, was entered in favor of both plaintiffs on November 14, 2013. Defendant's notice of appeal from the May 30, 2013 decision is deemed a premature notice of appeal from the November 14, 2013 judgment (see CPLR 5520 [c]).

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the trial judge had the advantage of seeing the witnesses and hearing their testimony (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

The District Court's determination, including its conclusion that defendant was liable to Mr. Duran for $7,000, was warranted, given the fact that defendant did not hold title to the truck he sold to Mr. Duran. Moreover, in this case, the District Court's determination rested in large measure upon its assessment of the credibility of witnesses, and there is no basis to disturb that assessment (see Elias v Handler, 244 AD2d 522 [1997]).

We note that, while the District Court, in its decision after trial, dismissed so much of the complaint as was asserted by plaintiff Edith Salguero Duran, and awarded plaintiff Ricardo W. [*2]Duran the principal sum of $7,000, the judgment was entered in favor of both plaintiffs. "Where there is an inconsistency between a judgment and the decision upon which it is based, the decision controls" (Green v Morris, 156 AD2d 331 [1989]). Furthermore, such an inconsistency may be corrected either by way of a motion for resettlement, pursuant to CPLR 2221, or on appeal, pursuant to CPLR 5019 (a) (see Green v Morris, 156 AD2d 331; Young v Casabonne Bros., 145 AD2d 244, 248 [1989]; see also DLJ Mtge. Capital, Inc. v 44 Brushy Neck, Ltd., 51 AD3d 857 [2008]). We therefore modify the judgment by deleting the award in favor of plaintiff Edith Salguero Duran and by providing that so much of the complaint as was asserted by that plaintiff is dismissed (see CPLR 5019 [a]).

Garguilo, J.P., Marano and Connolly, JJ., concur.

Decision Date: April 16, 2015