Tadic v Sarad Mktg., Inc.

[*1] Tadic v Sarad Mktg., Inc. 2015 NY Slip Op 50231(U) Decided on February 24, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 24, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2013-2355 K C

Milos Tadic, Appellant,

against

Sarad Marketing, Inc., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered August 19, 2013. The order denied defendant's motion to amend an order of the same court entered July 3, 2013.

ORDERED that the appeal is dismissed.

In this small claims action, plaintiff seeks to recover the principal sum of $3,688.13 for an allegedly defective transmission and engine which he had purchased from defendant. After a nonjury trial, a judgment in the principal sum of $2,106.73, representing the purchase price of the engine, was entered on March 13, 2012, in favor of plaintiff, "conditioned on his return of the subject transmission [sic] to defendant, who is to pick up said transmission [sic]." By order entered July 3, 2013, the Civil Court granted a motion by plaintiff to the extent of amending the judgment to reflect that the judgment was conditioned on the return and pick-up of the "engine" and not the "transmission." The order further provided that the engine was to be picked up by defendant "at an arranged date and time, within thirty days of receipt" of the order. Defendant's subsequent motion to amend the July 3, 2013 order, and to re-open and retry the case, was denied by order entered August 19, 2013, the court noting that if plaintiff did not make the engine available for pick-up, then defendant's obligation to pay would not be triggered.

Plaintiff appeals from the August 19, 2013 order.

It is well settled that only a party "aggrieved" by a determination may appeal from the judgment or order embodying such determination (CPLR 5511). "Merely because the order appealed from contains language or reasoning that a party deems adverse to its interests does not furnish a basis for standing to take an appeal' " (Castaldi v 39 Winfield Assoc., LLC, 22 AD3d 780, 781 [2005], quoting Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 472-473 [1986]; see Photonics Indus. Intl., Inc. v Xiaojie Zhao, 39 AD3d 610 [2007]; ABC Mech. Sys. Corp. v New York State Off. of Gen. Servs., 238 AD2d 532, 533 [1997]; M.J. & K. Co. v Matthew Bender & Co., 220 AD2d 488, 489 [1995]). Because the Civil Court denied defendant's motion to amend the court's July 3, 2013 order, and to re-open and retry the case, plaintiff was not aggrieved thereby. The court's statement, in its August 19, 2013 order, that defendant's payment of the purchase price of the defective engine was contingent upon the return of the engine, simply clarified the conditional terms of the July 3, 2013 order, and the amended judgment entered pursuant thereto. Upon the determination of a small claim, the entry of judgment may be conditioned upon such terms as the court deems proper (see CCA 1805 [a]; Portnov v Rainbow Seven Color, Inc., 40 Misc 3d 138[A], 2013 NY Slip Op 51393[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, plaintiff's appeal from the August 19, 2013 order is dismissed.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: February 24, 2015