Feldman v Chugunov

[*1] Feldman v Chugunov 2010 NY Slip Op 52121(U) [29 Misc 3d 140(A)] Decided on December 3, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 3, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2009-1453 K C.

David Feldman, Respondent,

against

Bogdan Chugunov, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered December 1, 2008. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,384.41.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

Plaintiff brought this small claims action against his neighbor, seeking the sum of $2,384.41 on the ground that defendant had damaged a retaining wall on plaintiff's property. Defendant interposed a counterclaim seeking $1,000 for damage to his garden. After a nonjury trial, the Civil Court awarded plaintiff the principal sum of $2,384.41 on his cause of action and defendant the principal sum of $1,000 on his counterclaim. Separate judgments were entered accordingly. Defendant appeals from the judgment entered against him on plaintiff's claim.

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]). Furthermore, the determination of the trier of fact as to issues of credibility is given substantial deference, as the trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d 125 [2000]).

Upon our review of the record, we find that there is no support for the award of $2,384.41 in plaintiff's favor. It appears that plaintiff was in possession of multiple estimates of the cost to repair the wall; however, the record fails to indicate whether the court considered such evidence. [*2]Consequently, substantial justice requires that the matter be remitted to the Civil Court for a new trial (see CCA 1804, 1807).

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: December 03, 2010