Beizer v Continental Owners Corp.

[*1] Beizer v Continental Owners Corp. 2009 NY Slip Op 52269(U) [25 Misc 3d 136(A)] Decided on November 5, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-1104 Q C.

Harriet Beizer, Appellant-Respondent,

against

Continental Owners Corp., Respondent-Appellant, -and- NEW YORK COOLING TOWERS, INC., Defendant.

Appeal and cross appeal from a judgment of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered March 22, 2007. The judgment,

after a nonjury trial, insofar as appealed from by plaintiff as limited by the brief, awarded defendant Continental Owners Corp. the principal sum of $2,180 on its counterclaim. The judgment, insofar as cross-appealed from by defendant Continental Owners Corp. on the ground of inadequacy, awarded said defendant the principal sum of only $2,180 on its counterclaim.

ORDERED that the cross appeal is dismissed; and it is further,

ORDERED that the judgment, insofar as appealed from by plaintiff, is reversed without costs and the counterclaim by defendant Continental Owners Corp. is dismissed.

Plaintiff commenced the instant small claims action against defendants for breach of contract, alleging that she had received smaller air conditioning units than those for which she had contracted, and that the units that were installed were insufficient to cool her apartment, apartment 11H. At the nonjury trial, plaintiff submitted into evidence an invoice which indicated that defendant New York Cooling Towers, Inc. (Cooling) would be installing four air [*2]conditioning units (one 800-unit size and three 400-unit size) at a cost of $3,998 in plaintiff's apartment. Plaintiff testified that she had made a deposit of $1,400 to defendant Continental Owners Corp. (Continental), the cooperative corporation which owned the premises, as required by the agreement for the air conditioning units. After Continental prohibited Cooling from performing any work in the building, a new company was hired by Continental to install air conditioners. Plaintiff was charged a total of $5,180 for the four units. Plaintiff testified that she had paid Continental an additional $3,000 towards the air conditioning units and that the wrong size units had been installed.

Continental's property manager testified that plaintiff had only paid a total of $3,000 to Continental toward the air conditioners. Continental's superintendent admitted that the wrong size units had been installed in plaintiff's apartment. Specifically, he testified that one 400-unit size and three 200-unit size air conditioners were installed in the apartment.

In view of the foregoing, the judgment awarding Continental the sum of $2,180 on its counterclaim for the unpaid balance due on the air conditioners did not render substantial justice between the parties in accordance with the rules and principles of substantive law (see CCA 1807). Consequently, the judgment, insofar as appealed from by plaintiff, is reversed and Continental's counterclaim is dismissed.

While Continental's notice of cross appeal stated that Continental was cross-appealing from "so much of the Judgment as did not award Continental Owners Corp., a judgment on its counterclaim for attorney's fees," Continental did not assert in its brief any arguments as to why the Civil Court erred in not awarding it attorney's fees. Rather, Continental's brief asserted that the judgment should be affirmed. As a result, the cross appeal is dismissed as abandoned since Continental does not seek modification of the judgment on its counterclaim (see Chia Yun Tsai v Duane Reade, Inc., 63 AD3d 1096 [2009]; Sirma v Beach, 59 AD3d 611 [2009]).

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 05, 2009