Rothstein v Citibank, N.A.

[*1] Rothstein v Citibank, N.A. 2007 NY Slip Op 52073(U) [17 Misc 3d 133(A)] Decided on October 23, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-1502 K C.

Ted Rothstein, Appellant,

against

Citibank, N.A., Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered February 16, 2006. The judgment, after a nonjury trial, dismissed the action.

Judgment affirmed with $25 costs.

Plaintiff brought the instant small claims action for breach of contract after plaintiff failed to receive a $15 rebate upon his enrollment in defendant's Credit Protector Program. After trial, the court dismissed the action on the ground that plaintiff failed to show that he was enrolled in the Program and that he was therefore entitled to the $15 rebate which he sought. The instant appeal ensued.

Although plaintiff annexed to his brief a document indicating that he had enrolled in the Program in June of 2005, said matter is dehors the record and this court may not consider it on the appeal (Chimarios v Duhl,152 AD2d 508 [1989]). Moreover, contrary to plaintiff's contention, there is nothing in the record to indicate that the trial court prevented him from proffering that document into evidence. Nor was it improper, as plaintiff contends, for the court to require him to testify from memory and to refuse to permit plaintiff to read from his notes. The admission into evidence of a certified transcript of plaintiff's previous trial does not appear to have been a factor in the trial court's determination that plaintiff failed to prove his enrollment in the Program in June of 2005 since, as plaintiff admits, that trial concerned a different period of [*2]enrollment.

The standard of review on appeal of a small claims judgment is that "substantial justice has not been done between the parties according to the rules and principles of substantive law" (CCA 1807). A small claims judgment may not be reversed absent a showing that there is no support in the record for the court's conclusions, or that the court's determination is otherwise so clearly erroneous as to deny substantial justice (see Forte v Bielecki, 118 AD2d 620 [1986]; see also Blair v Five Points Shopping
Plaza, 51 AD2d 167 [1976]). In our opinion, substantial justice was done between the parties. Accordingly, there is no basis for this court to reverse the judgment dismissing the action.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: October 23, 2007