Jasmin v Ulyssese

[*1] Jasmin v Ulyssese 2006 NY Slip Op 51663(U) [13 Misc 3d 127(A)] Decided on August 15, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 15, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-1765 N C.

Jean Jasmin, Respondent,

against

Serge Ulyssese, Appellant.

Appeal from a judgment of the District Court of Nassau County, Second District (Sharon Commissiong, J.), entered February 9, 2005. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $4,459.56.

Judgment modified by reducing the amount awarded to plaintiff to the principal sum of $2,600; as so modified, affirmed without costs.

In this small claims action, plaintiff sought to recover the replacement cost of certain appliances allegedly removed by defendant following defendant's sale of his house to plaintiff. At trial, plaintiff testified that prior to the closing, he paid defendant the sum of $2,600 for the appliances. This testimony was not disputed by defendant. An issue of credibility was presented as to which appliances were removed by defendant, since defendant claimed that he did not remove any appliances belonging to the plaintiff.

The determination of issues of credibility is for the trier of fact to decide as it had the opportunity to observe and evaluate the testimony and demeanor of the witnesses (see McGuirk v Mugs Pub, 250 AD2d 824 [1998]; Richard's Home Ctr. & Lbr. v Kraft, 199 AD2d 254 [1993]; Claridge Gardens v Menotti, 160 AD2d 544 [1990]) and its decision should not be disturbed on appeal unless it is obvious that it could not have been reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544, supra). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d 125, 126 [2000]). After reviewing the record, we find that the lower court's determination of the issue of credibility in favor of plaintiff with respect to liability rendered substantial justice between the parties in accordance with the rules and principles of substantive law (see UDCA 1807; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d [*2]125, supra).

With respect to the issue of damages, however, we find that, under the circumstances presented, the lower court improperly awarded plaintiff both the contract price ($2,600) and the cost ($1,859.56) incurred by plaintiff in replacing certain of the appliances. Pursuant to UCC 2-711 (1) (a), "[w]here the seller fails to make delivery...the buyer may cancel [the contract] and...may in addition to recovering so much of the price as has been paid (a) cover' and have damages under [UCC 712]." UCC 2-712, in turn, provides: "(1) After a breach within the preceding section the buyer may cover' by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller. (2) The buyer may recover from the seller as damages the difference between the cost of cover and the contract price together with any incidental or consequential damages as hereinafter defined (Section 2-715), but less expenses saved in consequence of the seller's breach."
At trial, plaintiff established that he replaced some of the appliances at a total cost of $1,859.56. Since plaintiff failed to establish that the cost of cover or any other
damages exceeded the contract price, his recovery is limited to the amount paid under the contract, i.e., $2,600 (UCC 2-711 [1] [a]). Therefore, the judgment in favor of plaintiff should be modified accordingly.

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: August 15, 2006