Soroudi v O'Kefe

[*1] Soroudi v O'Kefe 2006 NY Slip Op 51296(U) [12 Misc 3d 138(A)] Decided on July 3, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 3, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ANGIOLILLO, J.P., McCABE and TANENBAUM, JJ
2005-1847 N C.

Mehran Soroudi, Appellant,

against

Mike O'Kefe and L.A. FITNESS, Respondents.

Appeal, on the grounds of inadequacy, from a judgment of the District Court of Nassau County, Third District (Howard S. Miller, J.), entered May 9, 2005. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,327.38.

Judgment modified by increasing the award in favor of plaintiff to the principal sum of $1,543.50; as so modified, affirmed without costs.

In this small claims action for breach of contract, the documentary evidence and plaintiff's uncontroverted testimony established that he initially entered into a monthly membership agreement in July 2004 with defendant L.A. Fitness which was to
commence in October 2004. Plaintiff paid said defendant the sum of $247 representing an initiation fee and the first and last months' dues. In October 2004, plaintiff requested that defendant refund his payment of $247. Instead, defendant's manager offered him
a three-year membership for the sum of $1,517, which normally costs $1,764, a difference of $247, and he accepted same and paid defendant the sum of $1,517. Plaintiff testified that he enjoyed the use and benefit of the health club from October 2004 through mid-February 2005 when he was told by defendant Mike O'Kefe, manager of defendant L.A. Fitness, that he was no longer permitted to use the facilities.

While the lower court correctly found that plaintiff's damages should be pro-rated to reflect the 4 1/2 months that he enjoyed the use and benefit of the health club, the court incorrectly calculated plaintiff's damages by pro-rating same based on the sum of $1,517 rather than the sum of $1,764, which, the record establishes, was the total amount paid by plaintiff (including the initial payment of $247, which sum was credited to plaintiff's three-year [*2]membership agreement). Accordingly, substantial justice requires that the judgment be modified by increasing the award in favor of plaintiff to the principal sum of $1,543.50 (see UDCA 1807).

Angiolillo, J.P., McCabe and Tanenbaum, JJ.,
Decision Date: July 3, 2006