Polichetti v B.M. Kim's Tae Kwon Do

[*1] Polichetti v B.M. Kim's Tae Kwon Do 2007 NY Slip Op 50733(U) [15 Misc 3d 134(A)] Decided on April 6, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 6, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., LIPPMAN and MOLIA, JJ
2006-1188 RO C.

Carl Polichetti, Respondent,

against

B.M. Kim's Tae Kwon Do, Appellant.

Appeal from a judgment of the Justice Court of the Town of Clarkstown, Rockland County (Scott B. Ugell, J.), entered December 8, 2005. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, awarded plaintiff the principal sum of $2,200.

Judgment, insofar as appealed from, is reversed without costs and plaintiff's claim is dismissed.

In this small claims action for breach of contract, plaintiff testified that he entered into a three-year contract with defendant B.M. Kim's Tae Kwon Do school which
provided that his son would receive lessons twice a week commencing in July 2004. The cost of tuition was $100 per month and the contract specifically provided that defendant reserved the right to relocate or consolidate school locations within a ten mile radius of the current location. It is uncontroverted that in March 2005, defendant closed for 4-5 days and, during that time, relocated to another facility less than 1/4 mile away. On October 27, 2005, plaintiff wrote defendant a letter requesting that the contract be terminated since he was unhappy with the new location and with one of the new instructors. Plaintiff's son stopped attending defendant's school in October 2005 and plaintiff paid defendant the total sum of $1,700 representing a $100 down [*2]payment as well as tuition for the months of August 2004 through November 2005.

Upon a review of the record, it is evident that the judgment in favor of plaintiff did not render substantial justice between the parties in accordance with the rules and principles of substantive law (UJCA 1807). There is no evidence that defendant breached the contract and, therefore, plaintiff was not entitled to an award of damages. Although plaintiff testified at trial that defendant was closed for approximately 4-5 days when it moved locations, plaintiff did not state that his son missed any classes during those days thereby establishing that he was entitled to a refund for any missed classes. We note that while the judgment, inter alia, dismissed defendant's counterclaim, defendant's appeal is limited by its brief to that part of the judgment which awarded
plaintiff the principal sum of $2,200. Accordingly, the judgment, insofar as appealed from, is reversed and plaintiff's claim dismissed.

Rudolph, P.J., Lippman and Molia, JJ., concur.
Decision Date: April 6, 2007