Niver v Metro Mgt. & Vil. E. Towers, Inc.

[*1] Niver v Metro Mgt. & Vil. E. Towers, Inc. 2010 NY Slip Op 52299(U) [30 Misc 3d 129(A)] Decided on December 7, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., McKeon, Shulman, JJ
570671/10.

Sylvia C. Niver, Plaintiff-Appellant,

against

Metro Management and Village East Towers, Inc., Defendants-Respondents. Metro Management and Village East Towers, Inc., Third-Party Plaintiffs, Isabel Martinez, Third-Party Defendant.

Plaintiff appeals from 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 August 31, 2009, after trial, in favor of defendants dismissing the underlying action.

Per Curiam.

Judgment (Arlene P. Bluth, J.), entered on or about August 31, 2009, 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 findings of fact and credibility determinations (see Williams v Roper, 269 AD2d 125, 126 [2000], lv dismissed 95 NY2d 898 [2000]), we sustain the dismissal after trial of plaintiff's action. It was within the province of the trial court, as fact-finder, to discredit plaintiff's testimony about the extent and degree of the noise emanating from the apartment of her neighbor, the third-party defendant. The record supports the conclusion that plaintiff did not establish that defendants (the owner of the subject building and its management company) failed to respond to her complaints, or that she was entitled to damages for excessive noise. [*2]

We note that, in light of the dismissal of the main action, the third-party action is moot (see Ayala v Lockheed Martin Corp., 22 AD3d 394 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 07, 2010