Chess v Perscichetty

[*1] Chess v Perscichetty 2012 NY Slip Op 50787(U) Decided on April 27, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
.

Norma B. Chess, Respondent,

against

Rita Perscichetty, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Kim Dollard, J.), entered August 18, 2010. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $495.68.

ORDERED that the judgment is affirmed, without costs.

Plaintiff brought this small claims action to recover for damage which, she alleged, was caused by roof shingles which had blown off defendant's roof, striking and breaking plaintiff's window, during a storm. Following a nonjury trial, the Civil Court awarded judgment in favor of plaintiff in the principal sum of $495.68. [*2]

To the extent that defendant argued that the damage to plaintiff's property was caused by an "act of God," we note that, for this defense to apply, "human activities cannot have contributed to the loss in any degree" (Moore v Gottlieb, 46 AD3d 775 [2007]), and that defendant bore the burden of demonstrating that plaintiff's losses were occasioned exclusively by natural causes (Barnet v New York Cent. & Hudson Riv. R.R. Co., 222 NY 195, 198-199 [1918]; Tel Oil Co., Inc. v City of Schenectady, 303 AD2d 868, 870-871 [2003]; Prashant Enters. v State of New York, 206 AD2d 729, 730 [1994]).

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 125, 126 [2000]). 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]). Upon a review of the record, we find that the judgment in favor of plaintiff provided the parties with substantial justice according to the rules and principles of
substantive law (see CCA 1804, 1807; Ross v Friedman, 269 AD2d 584
[2000]; Williams v Roper, 269 AD2d 125).

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 27, 2012