Enco Constr. Servs., Inc. v Poggi

[*1] Enco Constr. Servs., Inc. v Poggi 2007 NY Slip Op 52278(U) [17 Misc 3d 135(A)] Decided on November 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., EMERSON and LaCAVA, JJ
2006-1632 W C.

Enco Construction Services, Inc., Respondent,

against

Patrick Poggi, Appellant.

Appeal from a judgment of the Justice Court of the Town of New Castle, Westchester County (Douglas M. Kraus, J.), dated February 28, 2006. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,000 and dismissed defendant's counterclaim.

Judgment affirmed without costs.

The instant action was commenced by plaintiff to recover $3,000 for labor and materials supplied to defendant for construction on defendant's home. Defendant, in turn, interposed a counterclaim for the same amount, contending that plaintiff had been
paid in full and that plaintiff's work was inferior. After trial, the court awarded plaintiff the principal sum of $3,000, and dismissed the counterclaim.

Contrary to defendant's contention, it was permissible for plaintiff, a corporation, to commence the instant action in the regular part of the Justice Court (see UJCA 501). Moreover, since defendant, a resident of Briarcliff Manor, did not raise any objection to plaintiff's having brought the action in the Justice Court of the Town of New Castle "by motion or in his responsive pleading" in the court below (UJCA 213 [d]), he is deemed to have waived any objection on this basis.

The issues in this case essentially involved the credibility of the witnesses. It is well settled that "[a] court's determination after a nonjury trial should be upheld if it is based on a fair interpretation of the evidence" (Eickler v Pecora, 12 AD3d 635, 636 [2004]; Martinez v Dushko, 7 AD3d 584, 585 [2004]; see also Hernandez v Bentinck, 17 AD3d 532 [2005]). Furthermore, "where, as here, a case has been tried without a jury, this Court's power to review the evidence is as broad as that of the trial court, bearing in mind, of course, that due regard must be given to the decision of the Trial Judge who was in a position to assess the evidence and the credibility of the witnesses'" (Koslowski v Koslowski, 297 AD2d 784, 784-785 [2002] [citations omitted]; see [*2]also Vizzari v Hernandez, 1 AD3d 431 [2003]). We find no basis to disturb the findings of the court below with respect to its credibility determinations. Moreover, we have reviewed defendant's remaining contentions and find them to be without merit.

Rudolph, P.J., Emerson and LaCava, JJ., concur.
Decision Date: November 20, 2007