Vilmont v Kenyon LLC

[*1] Vilmont v Kenyon LLC 2005 NY Slip Op 50072(U) Decided on January 20, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 20, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-739 K C

FRANTZ VILMONT, d/b/a HIGH Q AUTO, Appellant,

against

KENYON LLC, Respondent.

Appeal by plaintiff from a judgment of the Civil Court, Kings County (E. Prus, J.), entered January 20, 2004, in favor of defendant dismissing the complaint.

Judgment unanimously affirmed without costs.

The instant action was brought by plaintiff, a commercial tenant, against defendant, the owner of the property, to recover $15,750 which plaintiff spent for repairs
to the premises, which consisted of a lot with a small structure upon it. In April of 2001, when defendant took title to the property, there was no written lease in existence between the prior owner of the premises and plaintiff, the previous lease having expired in September of 2000. The parties subsequently entered into a lease agreement in May of 2002. At trial, plaintiff contended that in May of 2001, defendant's managing agent orally agreed to be responsible for the cost of repairs which plaintiff later made to the premises in June and July of 2001. The [*2]managing agent, on the other hand, stated that there had been no such agreement, and contended that the repairs were done prior to defendant's purchase of the property. He testified that plaintiff had told him that the prior owner had agreed to pay for the repairs, and that he told plaintiff to sue the prior owner.

The trial court found that the testimony of defendant's managing agent as to what transpired between the parties was more credible than plaintiff's version of the events, and that there was no agreement by defendant to be responsible for repairs. In addition, it would have been a simple matter for the parties' lease of May of 2002 to provide for credit for said repairs or a reduction in rent, but there was no mention of any credit or rent offset made in the lease.

The conflicting testimony presented an issue of credibility as to whether in fact defendant had agreed to reimburse plaintiff for the amounts spent on repairs, and the court below, as the trier of fact, resolved the issue in favor of defendant. We are of the opinion that the court's determination was supported by a fair interpretation of the
evidence, and should not be disturbed on appeal (see Jones v Hart, 233 AD2d 297 [1996]; DiSalvo v Ordway, 208 AD2d 798 [1994]). Accordingly, the judgment in favor of defendant dismissing the complaint should be affirmed.
Decision Date: January 20, 2005