Randazzo v Cherry Val. Tile & Stone

[*1] Randazzo v Cherry Val. Tile & Stone 2005 NYSlipOp 50748(U) Decided on May 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
2004-901 N C

ANTHONY RANDAZZO, Appellant,

against

CHERRY VALLEY TILE & STONE, Respondent.

Appeal by plaintiff from a small claims judgment of the District Court, Nassau County (S. Pardes, J.), entered August 13, 2004, in favor of defendant dismissing the action.

Judgment unanimously affirmed without costs.

In this small claims action, plaintiff sought to be reimbursed the sum of $2,600, representing the amount he spent to remove and replace natural granite floor tiles which he had purchased from defendant. Plaintiff testified that after he had the tiles installed in his kitchen, he noticed that there was a variation in their color. He
contended that defendant initially offered to replace and install some of the tiles but subsequently refused to pay for the installation. When defendant did not expeditiously
respond to his complaints, he had all the tiles removed, purchased new ones and had them installed.

Defendant's witness testified that it was expected that there would be slight shade variations in natural stone and that the problem was that the tiles had not been properly installed. He also testified that defendant was not responsible for the original installation and had never agreed to install the new tiles.

In our opinion, substantial justice was done between the parties according to the rules and principles of substantive law (UDCA 1807). The trial court's resolution of the issue regarding [*2]the installation of the replacement tiles was not so clearly erroneous as to warrant reversal (see Dourado v Jordan, 2002 NY Slip Op 40394[U] [App Term, 9th & 10th Jud Dists]). The deference which an appellate court normally accords to the credibility determinations of a trial court "applies with greater force" in small claims proceedings, given the limited scope of review (Williams v Roper, 269 AD2d 125, 126 [2000]).

We note that plaintiff inspected the allegedly non-conforming tiles prior to accepting and installing them. A purchaser's right to reject terminates upon acceptance (see UCC 2-602, 2-606). We further note that while defendant's witness testified that the tiles were not defective, defendant nevertheless offered to replace a certain number of tiles as an accommodation to plaintiff in order to resolve the instant dispute. Such offer, however, was rejected when plaintiff purchased different tiles for the entire floor and had them installed.
Decision Date: May 19, 2005