Foxworth v Tjutjulis

[*1] Foxworth v Tjutjulis 2007 NY Slip Op 50606(U) [15 Misc 3d 129(A)] Decided on March 26, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 26, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2006-342 K C.

CAROLYN FOXWORTH, Appellant,

against

HRISTOS TJUTJULIS, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered May 4, 2005. The judgment, after a nonjury trial, dismissed plaintiff's complaint.

Judgment affirmed without costs.

Plaintiff commenced this action against her landlord seeking to recover damages for her personal property which, she alleged, was either damaged or missing after she was evicted from her apartment. At trial, sufficient evidence was adduced to support the court's conclusion that, contrary to plaintiff's belief, the eviction was lawful, since it was carried out by a marshal in accordance with a duly issued warrant. As a result, defendant is not liable to plaintiff for any damage to her personal property caused by
the marshal (see Funding Assistance Corp. v Mashreq Bank, PSC, 277 AD2d 127 [2000]; Campbell v Maslin, 91 AD2d 559 [1982]).

To the extent plaintiff argues that she is entitled to recover pursuant to the hold harmless agreement between the landlord and the marshal, this contention is raised for the first time on appeal. In any event, such a claim lacks merit since she is not a third-party beneficiary thereof.

To the extent plaintiff's brief offers a new theory as to why she should be permitted to recover damages from defendant, such a contention will not be considered on appeal because it is based upon facts which are dehors the record (see Juarbe v City of New York, 303 AD2d 462 [*2][2003]).

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: March 26, 2007