Henryka v Amalgamated Warbasse House, Inc.

[*1] Henryka v Amalgamated Warbasse House, Inc. 2012 NY Slip Op 50421(U) Decided on March 6, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 6, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and ALIOTTA, JJ
2010-2943 K C.

Martula Henryka, Appellant,

against

Amalgamated Warbasse House, Inc., Respondent.

Appeal from a decision of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), dated April 6, 2010. The decision, insofar as appealed from, after a joint nonjury trial of this action and a small claims action, dismissed the complaint in this action. The appeal is deemed from a judgment of the same court entered May 10, 2010 dismissing the complaint (see CPLR 5512 [a]).

ORDERED that the judgment is affirmed, without costs.

After commencing a small claims action against defendant, her landlord, plaintiff commenced this plenary action seeking to recover damages for her personal property, which allegedly was either damaged or missing after she had been evicted from her apartment, and for defendant's failure to return an overpayment of rent. Following a joint nonjury trial of the two actions, by decision dated April 6, 2010, the Civil Court awarded defendant judgment dismissing plaintiff's small claims action as well as plaintiff's complaint in this action. A judgment was subsequently entered dismissing the complaint in this action. We deem plaintiff's appeal from so much of the decision as awarded defendant judgment dismissing the complaint in this action to be from the judgment (see CPLR 5512 [a]).

The decision of a fact-finding court should not be disturbed upon appeal unless it is [*2]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 evaluate their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). The evidence presented at trial demonstrated that defendant had reasonably deemed plaintiff's personal property to be abandoned after defendant had waited approximately six weeks following plaintiff's lawful eviction and, plaintiff having left the country, after defendant had unsuccessfully attempted to obtain information from plaintiff's relatives. Therefore, defendant is not liable for conversion of the property (see generally Foulke v New York Consol. R.R. Co., 228 NY 269 [1920]; 1 NY Jur 2d, Abandoned Property § 48). Moreover, plaintiff's claim for overpayment of rent was also properly dismissed, as the stipulation of settlement in the nonpayment proceeding, pursuant to which tenant was evicted, provided for the amount due and payable as arrears. Accordingly, the judgment dismissing the complaint in this action is affirmed.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 2012