Carfora v Chiamulera

[*1] Carfora v Chiamulera 2005 NYSlipOp 50534(U) Decided on April 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 13, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: April 13, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, P.J., ANGIOLILLO and COVELLO, JJ.
2004-1150 W C

Anne Carfora and Adele Gagliardi, Appellants,

against

Harry Chiamulera, D/b/a Chiamulera Travel, Respondent.

Appeal by plaintiffs from a judgment of the Justice Court, Town of Harrison, Westchester County (M. Lust, J.), entered July 29, 2004, in favor of defendant dismissing their complaint.

Judgment unanimously affirmed without costs.

In this action, plaintiffs sought to recover monies that they had paid the defendant travel agency for a tour of Italy. A review of the record establishes that the lower court's judgment dismissing plaintiffs' complaint was not based wholly on hearsay, but rested as well upon competent evidence, including the testimony of plaintiff Anne Carfora and defense witness Ruth Chiamulera. Such testimony established that plaintiffs agreed to receive a credit for a future tour offered by the tour operator to be booked no later than December 31, 2002, instead of a refund of fifty percent of the money which they had paid.

While plaintiff Adele Gagliardi testified that she was informed by the defendant travel agency that she would receive a full refund for the tour, this presented an issue of credibility and we are of the opinion that the lower court's resolution thereof was based on 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]). Furthermore, while plaintiff Gagliardi testified that she has taken another tour and never
received a credit for same, she did not testify as to when she took the tour or if she booked same [*2]with the tour operator who offered her the credit.
Decision Date: April 13, 2005