Smyth v Vosburgh

[*1] Smyth v Vosburgh 2014 NY Slip Op 50395(U) Decided on March 5, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., IANNACCI and TOLBERT, JJ
2012-2281 D C.

Gerard Smyth, Respondent,

against

Paul Vosburgh and FOX WOOD FARM, INC., Appellants.

Appeal from a judgment of the Justice Court of the Town of Red Hook, Dutchess County (Jeffrey Martin, J.), entered June 21, 2012. The judgment, after a nonjury trial, entered pursuant to a decision of the same court dated June 4, 2012 awarding plaintiff the principal sum of $3,000 and awarding defendants the principal sum of $384 upon their counterclaim, awarded plaintiff the net principal sum of $2,616.

ORDERED that, on the court's own motion, defendants' notice of appeal from the decision dated June 4, 2012 is deemed a premature notice of appeal from the judgment entered June 21, 2012 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover the principal sum of $3,000, representing the balance allegedly due for his construction work in framing, roofing and siding a barn, pursuant to an oral contract. Defendants interposed a counterclaim for $3,000 to recover the expenses incurred as a result of plaintiff's allegedly defective construction. In a decision after a nonjury trial, the Justice Court found that plaintiff was due a total of $3,000, which sum was offset by $384, an amount plaintiff conceded was due defendants. Defendants appeal from the decision. Subsequently, a judgment was entered in favor of plaintiff in the net principal sum of $2,616, from which we deem the appeal to have been taken (see CPLR 5520 [c]).

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]). Our review of the judgment is limited to whether "substantial justice has not been done between the parties according to the rules and principles of substantive law" (UJCA 1807). The deference normally accorded to the credibility determinations of a trial court applies with greater force in small claims proceedings, given the limited scope of review and the often attenuated record available on appeal (see Williams v Roper, 269 AD2d 125, 126 [2000]).

The parties disputed whether plaintiff had in fact competently performed the work contracted for, and whether defendants had made known to plaintiff their dissatisfaction with certain aspects of plaintiff's work. They also disputed whether plaintiff had been told that he would be required to assume certain expenses involved in the construction. Upon a review of the record, we find no basis to disturb the Justice Court's credibility determinations.

With respect to defendants' contention that the court should have recused itself so that their sole witness, who was distantly related to the court, could testify, we note that the court gave defendants the option of either having the trial proceed before another judge, or continuing the trial before him without calling their witness, and defendants chose the latter option. A party which has waived the issue of disqualification by consenting to permit the judge to preside over [*2]the trial may not raise such an objection on appeal (see e.g. Matter of Shepard v Roll, 278 AD2d 755 [2000]; Matter of Arcarese v Monachino, 58 AD2d 1030 [1977]; see also 28 NY Jur 2d, Courts and Judges § 406).

We further note that we do not consider the factual assertions made by defendants in their appellate brief or the materials annexed to their brief, as they are dehors the settled record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

In view of the foregoing, we conclude that the judgment rendered substantial justice between the parties according to the rules and principles of substantive law (see UJCA 1804, 1807).

Accordingly, the judgment is affirmed.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: March 05, 2014