Alexanian v Attard

[*1] Alexanian v Attard 2010 NY Slip Op 51459(U) [28 Misc 3d 137(A)] Decided on August 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 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
2009-1610 Q C.

Garo Alexanian, Appellant,

against

Chris Attard and EMMANUEL ATTARD, Respondents.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Stephen Gottlieb, J.H.O.), dated January 14, 2009. The judgment, after an inquest, awarded plaintiff the principal sum of only $554.14 as against defendant Chris Attard and dismissed the action as against defendant Emmanuel Attard.

ORDERED that the judgment is affirmed without costs.

Plaintiff commenced this small claims action seeking to recover the sum of $1,500 for breach of a window repair contract. After an inquest, the Civil Court awarded plaintiff the principal sum of $554.14 as against defendant Chris Attard and dismissed the action as against defendant Emmanuel Attard. Plaintiff appeals on the ground of inadequacy with respect to the award against Chris Attard, and he challenges the court's dismissal of the action against Emmanuel Attard. Upon a review of the record, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (CCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]).

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 (see 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 Williams v Roper, 269 AD2d at 126). The Civil Court properly dismissed the action as against Emmanuel Attard. The written agreement for the repair of plaintiff's window was signed only by Chris Attard. In viewing the totality of the attendant circumstances, we find that the Civil Court properly determined that Emmanuel Attard was not bound by any contract (see generally Aces Mech. Corp. v Cohen Bros. Realty & Constr. Corp., 136 AD2d 503 [1988]; Four Seasons Hotels v Vinnik, 127 AD2d 310 [1987]).

With respect to the award against Chris Attard, the court properly declined to award plaintiff the sum of $395 to repair the holes that plaintiff had made when he had boarded over a side window of his house since a plaintiff may only recover damages for a breach of contract which are the natural and probable consequences of the breach, or which can reasonably be said [*2]to have been foreseen or contemplated by the parties when the contract was made (see Glens Falls Ins. Co. v Quality Furniture Servs. Corp., 301 AD2d 626, 627 [2003]; see also Clearview Concrete Prods. Corp. v S. Charles Gherardi, Inc., 88 AD2d 461, 469 [1982]). Plaintiff also failed to establish a cause of action for the tort of intentional infliction of emotional distress. With regard to plaintiff's seeking to recover damages for his expenses in the prosecution of this action, a civil litigant generally cannot recover the litigation expenses of an action (see Hartford Cas. Ins. Co. v Vengroff Williams & Assoc., Inc., 306 AD2d 435 [2003]; Ajar v Ajar, 207 AD2d 469, 471 [1994]; Wu v Kao, 194 AD2d 666 [1993]). We find that the record supports the court's determinations and, accordingly, affirm the judgment.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: August 12, 2010