Canty v Rossitto-Canty

[*1] Canty v Rossitto-Canty 2009 NY Slip Op 51167(U) [23 Misc 3d 147(A)] Decided on June 10, 2009 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler JJ
570216/09.

Paul E. Canty, Plaintiff-Respondent, - -

against

Rosie Rossitto-Canty, Defendant-Appellant,

Defendant, as limited by her brief, appeals from

that portion of a judgment of the Small Claims Part of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), entered on or about October 7, 2008, after trial, awarding plaintiff damages in the principal sum of $633.67 on his main action.
Per Curiam.

Judgment (Arlene P. Bluth, J.), entered on or about October 7, 2008, affirmed, without costs.

Applying the narrow standard of review governing appeals in small claims actions (see CCA 1807), and giving due deference to the trial court's express findings of fact and credibility (see Williams v Roper, 269 AD2d 125, 126 [2000], lv dismissed 95 NY2d 898 [2000]), we sustain the judgment issued in plaintiff's favor on his main action. It was within the province of the trial court, as fact-finder, to credit plaintiff's testimony that defendant "keyed" the hood of plaintiff's car in his "plain sight," and discredit defendant's version of events, including her unconvincing explanation as to why she "couldn't have done" the parallel scratch marks clearly depicted in the photographic exhibits. The court was fully warranted in rejecting defendant's apparent theory that the automobile damage resulted from plaintiff's conduct in "throwing" her onto the car, a determination resting squarely on the court's negative assessment of defendant's credibility and its concomitant finding that "there was no physical assault [of defendant]".
THIS CONSTITUTES THE DECISION AND ORDER OF THE
COURT.
I concurI concur concur
Decision Date: June 10, 2009