Friedenberg v Mollen

[*1] Friedenberg v Mollen 2005 NYSlipOp 50610(U) Decided on April 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: April 22, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PATTERSON, J.P., GOLIA and RIOS, JJ.
2004-762 Q C

Zvi Friedenberg, Appellant,

against

Milton Mollen, Respondent.

Appeal by plaintiff from a judgment of the Civil Court, Queens County (V. Brathwaite Nelson, J.), entered March 17, 2004, after a nonjury trial, in favor of defendant dismissing the complaint.

Judgment unanimously affirmed without costs.

"The determination of the trial court after a nonjury trial should not be disturbed on appeal unless it is clear that the court's conclusions could not have been reached upon a fair interpretation of the evidence, especially where the findings of fact rest in large measure on considerations relating to the credibility of witnesses . . ." (Bercow v Damus, 5 AD3d 711, 711-712 [2004] [citations omitted]; see also Eickler v Percora, 12 AD3d 635 [2004]). "Great deference must be afforded to credibility assessments made by the trier of fact, as it had the unique opportunity to view the witnesses, hear their testimony, and observe their demeanor" (see Matter of Piterniak, ___ AD3d ___ [2d Dept, Mar. 14, 2005]; see also Jacoby, M.D., P. C. v Loper Assocs., 249 AD2d 277, 279 [1998]). In the instant case, the court assessed the parties' credibility and found, inter alia, that defendant was retained by plaintiff's son, that defendant's version of the fee agreement was more credible than plaintiff's version and that plaintiff never had a contractual relationship with defendant or either of the law firms with which defendant was associated. Inasmuch as the court's findings were based upon credibility determinations and said findings were not inconsistent with a fair interpretation of the evidence, there is no reason to disturb the court's findings (see Bercow, 5 AD3d at 711-712; Eickler v Pecora, 12 AD3d 635, supra; see also Nicastro v Park, 113 AD2d 129 [1985]). Since the court found that plaintiff never had a contractual relationship with defendant or the law firms with [*2]which defendant was associated, plaintiff has no standing to seek to recover legal fees paid to defendant (see Cinderella Holding Corp. v Calvert Ins. Co., 265 AD2d 444 [1999]).
Decision Date: April 22, 2005