Cheung v Lucky Express Corp.

[*1] Cheung v Lucky Express Corp. 2010 NY Slip Op 51359(U) [28 Misc 3d 135(A)] Decided on July 29, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 29, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-1582 Q C.

Wing C. Cheung, Respondent,

against

Lucky Express Corporation Doing Business as GOOD LUCK CAR SERVICE, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered January 12, 2009. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,880.

ORDERED that the judgment is affirmed without costs.

Plaintiff brought this small claims action to recover damages for breach of contract. At trial, he testified that, in February 1998, he had paid defendant a lump sum of $3,000 for a radio and signed a "Driver Contract," which provided that, upon one month's notification of his withdrawal from defendant's car service, he was entitled to the return of the money. He claimed that, with the exception of two years, he had worked continuously as a driver until he had sought to retire in February 2008. When he notified the car service of his retirement and sought to return the radio, the car service refused to refund his money. After trial, the Civil Court awarded plaintiff the principal sum of $2,880.

This court's review is limited to determining whether substantial justice was done between the parties according to the rules and principles of substantive law (CCA 1807). Even if an appellate court differs with the small claims court on an arguable point of fact or law, it should not reverse absent a showing that there is no support in the record for the trial court's conclusions or that they are otherwise so clearly erroneous as to deny substantial justice (see Payne v Biglin, 2 Misc 3d 127[A], 2003 NY Slip Op 51694[U] [App Term, 9th & 10th Jud Dists 2003]).

In the instant case, resolution of the issues presented hinged primarily upon the Civil Court's assessment of the credibility of the witnesses. The determination of issues of credibility is for the trier of fact, as it had the opportunity to observe and evaluate the testimony and [*2]demeanor of the witnesses (see McGuirk v Mugs Pub, 250 AD2d 824 [1998]; Richard's Home Ctr. & Lbr. v Kraft, 199 AD2d 254 [1993]), and its decision should not be disturbed on appeal unless it is obvious that said decision could not have been reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). The deference accorded to a trial court's credibility determinations applies with even greater force to judgments rendered in the Small Claims Part of the court given the limited standard of review (CCA 1807; see Williams v Roper, 269 AD2d 125, 126 [2000]).

In our opinion, substantial justice was done between the parties according to the rules and principles of substantive law (CCA 1804, 1807). Defendant's contentions that the action should be dismissed based on the statute of limitations, statute of frauds or lack of privity either were not preserved for appellate review or lack merit. The court properly calculated the amount due to plaintiff in accordance with the provisions of the contract. Furthermore, a review of the record establishes that the court's resolution of the issue of credibility in favor of plaintiff was based on a fair interpretation of the evidence. As there is no basis for this court to disturb the Civil Court's determination, the judgment is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 29, 2010