Slepoy v Kliger

[*1] Slepoy v Kliger 2009 NY Slip Op 52603(U) [26 Misc 3d 126(A)] Decided on December 15, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., GOLIA and STEINHARDT, JJ
2008-2172 K C. NO. 2008-2173 K C NO. 2008-2174 K C

Yakov Slepoy, Appellant,

against

Ellen Kliger, Respondent. Yakov Slepoy, Appellant, Steven Powell, Respondent. Yakov Slepoy, Appellant, Marina Kogan, Respondent.

Appeals from three judgments of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered July 18, 2006. The judgments, after a joint nonjury trial, dismissed the three actions.

ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the judgments are affirmed without costs. [*2]

Plaintiff commenced small claims actions against Ellen Kliger, Steven Powell and Marina Kogan, respectively, for property damage. The Civil Court ordered that the three actions, which involved common questions of law and fact, be consolidated for a joint trial (see CPLR 602 [a]). While plaintiff now challenges that order, there is no indication that he objected to the joint trial in the Civil Court, nor has he established that the order prejudiced him at trial. Consequently, we find that the Civil Court's consolidation of the three actions for trial was not an improvident exercise of discretion (see Spector v Zuckermann, 287 AD2d 704 [2001]).

The proof at trial revealed that plaintiff's causes of action arose from the removal of personal property in the course of plaintiff's eviction by defendant Powell, a New York City marshal, pursuant to a warrant of eviction. The warrant had issued following the entry of a final judgment in a summary proceeding brought against plaintiff by defendants Kliger and Kogan, plaintiff's former landlords, which proceeding the parties settled by stipulation. Following the joint nonjury trial of the instant actions, the Civil Court found in favor of defendants and dismissed the three actions.

The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see e.g. Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see e.g. Williams v Roper, 269 AD2d 125, 126 [2000]). Furthermore, the determination of the trier of fact as to issues of credibility is given substantial deference as the court has the opportunity to observe and evaluate the testimony and demeanor of the witnesses, thereby affording the trial court a better perspective from which to evaluate the credibility of the witnesses (see e.g. Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]).

Where, as here, an eviction is carried out "in accordance with a duly issued warrant," a landlord is not liable to a tenant for any damage allegedly caused by the marshal (Funding Assistance Corp. v Mashreq Bank, 277 AD2d 127, 127 [2000]; see Campbell v Maslin, 91 AD2d 559 [1982], affd 59 NY2d 722 [1983]; Foxworth v Tjutjulis, 15 Misc 3d 129[A], 2007 NY Slip Op 50606[U] [App Term, 2d & 11th Jud Dists 2007]; see also Ide v Finn, 196 App Div 304, 314-315 [1921]; see generally 3 Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 46:14 [4th ed]). Consequently, an action against a landlord to recover for property damage caused by a marshal "fails to state a cause of action" (Funding Assistance Corp., 277 AD2d at 128), as the Civil Court properly held. Although there is some authority permitting an action against a landlord who "participates in or authorizes the commission of the damage" (90 NY Jur 2d, Real Property — Possessory Actions § 274), the Civil Court evidently gave no credit to plaintiff's conclusory and unsubstantiated allegations to that effect, and there is no basis, upon this record, to disturb that determination. There is also no proof that plaintiff, prior to the warrant's execution, had any agreement with the defendant landlords for the property's safekeeping, and thus, he cannot prevail on a theory of constructive bailment (Funding Assistance Corp., 277 AD2d at 128).
A marshal must exercise reasonable care in removing property and observe regulations governing such a removal (90 NY Jur 2d, Real Property — Possessory Actions § 273; e.g. Marcado v Weinheim, 108 Misc 2d 81, 83 [1981]). The trial court apparently did not credit plaintiff's testimony that the marshal improperly left certain of plaintiff's property on the street, [*3]but rather accepted the marshal's proof that he had duly and properly compiled an inventory of plaintiff's possessions. Indeed, while plaintiff testified that the inventory was incomplete, the items to which he referred, according to the marshal, were not among the possessions removed, having either originated in a portion of the premises from which the marshal removed no items or represented fixtures that normally are not removed during an eviction. Under the circumstances, we find no basis to disturb the dismissal of the action against defendant Powell.

We note in passing that even had plaintiff established a basis for defendants' liability, and even if the proof may be construed to identify items of plaintiff's personal property that were damaged or lost in the eviction, plaintiff offered no proof of their value. Notwithstanding that a small claims court is not bound by the rules of evidence (CCA 1804), there must be some testimony regarding the "quality and condition" of a possession as a basis of a claim of value (Korn v American Airlines, Inc., 11 Misc 3d 87, 88-89 [App Term, 9th & 10th Jud Dists 2006]; see Fassett v Fassett, 101 AD2d 604, 605 [1984]; Bertin v Bertin, 14 Misc 3d 144[A], 2007 NY Slip Op 50392[U] [App Term, 9th & 10th Jud Dists 2007]; Moore v Fed Ex, 6 Misc 3d 128[A], 2005 NY Slip Op 50006[U] [App Term, 1st Dept 2005]; 36 NY Jur 2d, Damages §§ 82, 87), such as its original cost, age and condition at the time of the conversion (Correa v Midtown Moving, 4 Misc 3d 135[A], 2004 NY Slip Op 50798[U] [App Term, 1st Dept 2004]; see also Kodak v American Airlines, 9 Misc 3d 107, 110 [App Term, 9th & 10th Jud Dists 2005]), and exclusive of "sentimental or emotional loss consequent upon [the item's] destruction" (Kennedy v McKesson Co., 58 NY2d 500, 507 [1983]). Plaintiff's proof was insufficient to establish value as to any item allegedly damaged or lost.

Accordingly, we find that substantial justice was done between the parties according to the rules and principles of substantive law (CCA 1807), and we affirm the judgments.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 15, 2009