Ramirez v Goals Aesthetics & Plastic Surgery

[*1] Ramirez v Goals Aesthetics & Plastic Surgery 2018 NY Slip Op 51885(U) Decided on December 20, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2018
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Ling-Cohan, J.P., Gonzalez, Cooper, JJ.
570862/18

Jennifer Ramirez, Plaintiff

against

Goals Aesthetics & Plastic Surgery, Defendant-Respondent.

Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, Bronx County (Sabrina B. Kraus, J.), entered May 14, 2018, after trial, in favor of defendant dismissing the action.

Per Curiam.

Judgment (Sabrina B. Kraus, J.), entered May 14, 2018, affirmed, without costs.

The record and the ends of substantial justice (CCA 1804, 1807) support the dismissal after trial of this small claims action for breach of contract emanating from plaintiff's dissatisfaction with a plastic surgery procedure. "A breach of contract claim in relation to the rendition of medical or dental services by a physician or dentist will withstand a test of its legal sufficiency only when based upon an express special promise to effect a cure or accomplish some definite result" (Clarke v Mikail, 238 AD2d 538 [1997]; see Scalisi v New York Univ. Med. Ctr., 24 AD3d 145, 147 [2005]), a promise not shown to have been made by defendant. Plaintiff did not establish that the services were defective. Nor did she show that the outcome of the procedure was not aesthetically reasonable, so as to contractually qualify for a "touch-up" or revision procedure and, in any event, the trial court expressly rejected plaintiff's testimony that she requested a revision procedure as lacking in credibility. Particularly in the context of small claims cases, the decision of the fact-finding court is entitled to deference where it rests in large measure on considerations relating to the credibility of witnesses (see Williams v Roper, 269 AD2d 125 [2000], lv dismissed 95 NY2d 898 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: December 20, 2018