Khurana v Jones

[*1] Khurana v Jones 2014 NY Slip Op 50610(U) Decided on March 27, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MARANO and TOLBERT, JJ
2013-178 N C.

Narenda Khurana, Appellant,

against

Trevor Jones, TREVJON REALTY, CALDWELL BANKER and KAREN LEWIS JONES, Respondents.

Appeal from a judgment of the District Court of Nassau County, Fourth District (Eugene H. Shifrin, Ct. Atty. Ref.), entered November 10, 2010. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

In this small claims action, plaintiff seeks to recover $5,000, alleging that defendants failed to pay him a commission for his participation in the sale of residential property. At a nonjury trial, it was conceded that plaintiff was a licensed real estate broker and that he had worked at defendant Trevor Jones' real estate brokerage company over a period of five months. Plaintiff claimed that he had first shown residential property that was brokered through defendant Trevor Jones' company to the individual who had purchased the property, and that he was therefore entitled to one-quarter of the total brokerage commission that had been paid in connection with that sale. Defendant Trevor Jones denied that plaintiff had introduced the buyer to the property, or that he had any contractual obligation to pay a commission to plaintiff. A commission agreement that was introduced into evidence identified defendant Trevor Jones' brokerage company, Coldwell (sued herein as "Caldwell") Banker Trevjon Realty, as the listing broker and Keystone Realty USA as the selling broker, but did not name plaintiff; nor was plaintiff named on either of the other documents relating to the brokerage of the sale of the property that were admitted into evidence. Following the trial, the action was dismissed.

Our review is limited to determining whether "substantial justice has not been done between the parties according to the rules and principles of substantive law" (UDCA 1807). The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that its conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). 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 assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510 [1991]). The deference accorded to a trial court's credibility determinations applies with even greater force to judgments rendered in the Small Claims Part of the court, given the limited standard of review (see UDCA 1807; Williams v Roper, 269 AD2d 125 [2000]). [*2]

In this case, the District Court premised its dismissal of the action in part on its crediting of defendant Trevor Jones' evidence over plaintiff's, and there is no reason for this court to disturb that determination. Moreover, we note that, even if the court had credited plaintiff's evidence, plaintiff would have failed to make out a prima facie case for the payment of a commission. Plaintiff premised his alleged entitlement to a commission on his claim that he had introduced the ultimate purchaser to the property, which, alone, is insufficient to warrant the payment of a commission (see Greene v Hellman, 51 NY2d 197, 205 [1980]). We note that plaintiff failed to provide any additional evidence to establish that he had in fact been the procuring cause of the transaction (see Talk of the Town Realty v Geneve, 109 AD3d 981, 981-982 [2013]; Zere Real Estate Servs., Inc. v Parr Gen. Contr. Co., Inc., 102 AD3d 770, 773 [2013]; Hentze-Dor Real Estate, Inc. v D'Allessio, 40 AD3d 813, 815-816 [2007]). As the
record supports the District Court's determination, we find no reason to disturb the
judgment.

Accordingly, the judgment is affirmed.

Iannacci, J.P., Marano and Tolbert, JJ., concur.
Decision Date: March 27, 2014