Broden v Marlow
Annotate this CaseDecided on April 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and LaCAVA, JJ
2007-1770 P C.
Ronald Broden, Respondent,
against
Marc Marlow, Appellant.
Appeal from a judgment of the Justice Court of the Village of Brewster, Putnam County
(Richard L. O'Rourke, J.), entered April 23, 2007. The judgment, insofar as appealed from as
limited by the brief, after a nonjury trial, awarded plaintiff the principal sum of $610.
ORDERED that the judgment, insofar as appealed from, is affirmed without costs.
Defendant hired plaintiff, a rabbi, to co-officiate at his wedding for a fee of $700. Defendant made a $100 deposit towards the $700 fee. On the day of the wedding ceremony, defendant gave plaintiff a $600 check for the balance due, but stopped payment on it before the check was negotiated. Plaintiff brought this small claims action to recover the sum of $1,350, which sum included the $600 balance due, as well as $10, representing the fee his bank charged him on account of defendant's stop-payment order, additional consequential damages caused because the wedding ceremony ran late, and loss of income occasioned by court appearances. Defendant counterclaimed to recover the sum of $3,000, which he described as "the partial cost of having a replacement wedding ceremony properly and professionally performed in accordance with the rites and traditions of Jewish law." After a nonjury trial, the Justice Court awarded plaintiff the principal sum of $610, finding that the remainder of plaintiff's claims were either speculative or else non-recoverable. Defendant's counterclaim was dismissed.
On appeal, defendant only seeks reversal of the judgment in favor of plaintiff. He argues that he engaged plaintiff based upon plaintiff's representation that the marriage would be valid under Jewish law, and that, on plaintiff's Web site, plaintiff represented that the wedding ceremony would include certain components which were not included in his wedding. Defendant describes plaintiff's action in telling him on the date of the ceremony that the wedding would be invalid under Jewish law as "anticipatory breach," and also argues that plaintiff's right to payment was vitiated by plaintiff's allegedly fraudulent behavior in inducing defendant to hire [*2]him by means of false representations.
For there to be an anticipatory breach, there must be an unqualified and positive refusal to perform the whole of a contract (22A NY Jur 2d, Contracts § 455; see also Rachmani Corp. v 9 E. 96th St. Apt. Corp., 211 AD2d 262, 266-267 [1995]). That concept is inapplicable here, where plaintiff co-officiated at the wedding ceremony.
As to the issue of whether there was either breach of contract or fraud, we note that plaintiff's Web site was not in evidence at trial. Apart from a series of e-mails which post-dated the wedding and a brief letter from the pastor of the church where the wedding took place, the parties' testimony was the only evidence before the Justice Court concerning the provisions of the contract between the parties and any other representations or promises they had made, as well as the parties' performance thereunder. Thus, the determination as to whether promises were made and broken was one of credibility.
"On a bench trial, the decision of the 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, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses" (Claridge Gardens v Menotti, 160 AD2d 544, 544-545 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (Williams v Roper, 269 AD2d 125, 126 [2000]). Upon a review of the record, we find no basis to disturb the trial court's determination in favor of plaintiff.
As substantial justice was done between the parties according to the rules and principles of substantive law (UJCA 1807), the judgment of the Justice Court is affirmed.
Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: April 13, 2010
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