DiCostanzo v Jeffrey Ween & Assoc.

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[*1] DiCostanzo v Jeffrey Ween & Assoc. 2012 NY Slip Op 51080(U) Decided on June 11, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 11, 2012
2011-1567 RI C.




Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered January 10, 2011. The judgment, after a nonjury trial, dismissed plaintiff's cause of action and awarded defendant the principal sum of $2,692 on its counterclaim.

ORDERED that the judgment is modified by providing that plaintiff is awarded the principal sum of $119.23 on her cause of action; as so modified, the judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover the sum of $3,601, claiming entitlement to pay for three weeks' vacation time she had allegedly accrued prior to the termination of her employment by defendant, as well as reimbursement for an expense she claims to have incurred on behalf of defendant. Defendant interposed a counterclaim to recover salary payments it had allegedly made to plaintiff for a time period during which plaintiff had also received disability insurance benefits.

At a nonjury trial, plaintiff testified, and defendant did not dispute, that she had worked for defendant from May 2005 through March 24, 2009, when she had taken a disability leave, and that, in early July 2009, when she was preparing to return to work, defendant had terminated her employment. It was further undisputed that plaintiff did not have a written employment [*2]contract. Although plaintiff denied that she had been given a copy of defendant's employee handbook, she testified that, during the term of her employment, one of her jobs was to distribute the handbook to incoming employees. The employee handbook provided that defendant's employees who had worked a full three years "accrue[d]" three weeks of vacation per year, but further stated that "[w]hen employment ceases, vacation will be paid based upon time earned within the current calendar year on a quarterly basis." Plaintiff claimed that defendant had failed to pay her for any of her accrued vacation time. However, defendant contradicted plaintiff's testimony and offered evidence that, in September 2009, it had made a gross payment to plaintiff of $1,669.23, which was intended to constitute 7.5 days of accrued vacation pay.

Following the trial, the Civil Court dismissed plaintiff's cause of action and awarded defendant the principal sum of $2,692 on its counterclaim.

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]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a 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]). 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]).

The evidence submitted by defendant showed that plaintiff's daily wage was $238.46 and that, following the termination of plaintiff's employment, defendant paid her a gross amount of $1,669.23 for her accrued vacation time, which constituted payment for 7, rather than 7.5, days. Since the Civil Court found that plaintiff was entitled to be paid for 7.5 vacation days, we conclude that substantial justice (CCA 1804, 1807) requires that plaintiff recover $119.23 on her cause of action for unpaid wages, representing her gross salary for half a day.

Plaintiff also claimed that she was entitled to reimbursement for a payment she had made on behalf of defendant, using her credit card. At trial, plaintiff failed to testify about the reason she had incurred such a charge, the amount of that charge, or her authority to incur such a charge. We therefore conclude that the Civil Court properly ruled in favor of defendant on this issue.

We note that we do not pass on the propriety of the Civil Court's damage award on defendant's counterclaim, as it was not raised on appeal (see Rosamilia v Dannecker, 2003 NY Slip Op 51424[U] [App Term, 2d & 11th Jud Dists 2003]).

Accordingly, the judgment is modified by providing that plaintiff is awarded the principal sum of $119.23 on her cause of action.

Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: June 11, 2012

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