Lundgren v Marshall's, Inc.

[*1] Lundgren v Marshall's, Inc. 2012 NY Slip Op 50768(U) Decided on April 25, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., NICOLAI and MOLIA, JJ
.

Carolyn Lundgren, Appellant,

against

Marshall's, Inc., Respondent.

Appeal from a judgment of the District Court of Nassau County, Second District (Norman Janowitz, J.), entered November 23, 2010. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover the sum of $1,000, as the value of her handbag and its contents which were stolen while she was shopping at defendant's store. After a nonjury trial, the District Court found that plaintiff had failed to prove any negligence by defendant and dismissed the action. 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 (UDCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]).

The decision of a 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). Furthermore, the determination of a 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]).

In the instant case, no bailment was created, as plaintiff, who was shopping at defendant's store, never delivered her pocketbook to defendant's custody and control (see generally Chubb & Son v Edelweiss, Inc., 258 AD2d 345 [1999]; Dubay v Trans-Am. Ins. Co., 75 AD2d 312 [1980]; Dixon v X-Treme Body & Fender, Inc., 20 Misc 3d 130[A], 2008 NY Slip Op 51422[U] [App Term, 2d & 11th Jud Dists 2008]). Thus, no prima facie case of negligence based upon a bailment has been established (see generally Chubb & Son v Edelweiss, Inc., 258 AD2d 345). Consequently, the record amply supports the District Court's dismissal of the action.

Accordingly, the judgment is affirmed. Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: April 25, 2012