Yildirim v Turkish Airlines

[*1] Yildirim v Turkish Airlines 2015 NY Slip Op 50468(U) Decided on April 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ELLIOT, JJ.
2013-1858 K C

Hanife Yildirim, Appellant,

against

Turkish Airlines, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered May 29, 2013. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Small Claims Part of the Civil Court for a new trial.

In this small claims action, plaintiff seeks to recover the principal sum of $3,000, based on defendant's refusal to honor the return portion of round-trip airline tickets she had purchased for herself and her two children for travel between New York City and Istanbul, Turkey. At a nonjury trial of the action, plaintiff bore the burden of establishing "(1) the formation of a contract between the plaintiff and the defendant, (2) performance by the plaintiff, (3) the defendant's failure to perform, and (4) resulting damages" (Brualdi v IBERIA, Lineas Aereas de Espa a, S.A., 79 AD3d 959, 960 [2010]). All of these elements were conceded except for plaintiff's performance: defendant contended, in effect, that, based on their late arrival at the portion of the airport in Istanbul which was under defendant's control, plaintiff and her children had lost the right to use their tickets. Plaintiff controverted this claim, asserting that she had been on time at the airport and that her delay in arriving at defendant's check-in counter was defendant's fault.

Defendant did not produce a witness. Instead, defense counsel engaged in a colloquy with the trial court. In response to questioning from the court as to his knowledge of the event, defense counsel described the procedures followed by defendant at the airport in Istanbul. He also stated that he had spoken with employees of a security company in Istanbul, who had informed him that, based on their review of security tapes, they had concluded that plaintiff had not arrived at the Turkish airport on time.

Following the trial, the action was dismissed.

"A small claims court is generally not bound by statutory provisions or rules of practice, procedure, pleading or evidence,' and all that is required is that proceedings be conducted in such manner as to do substantial justice between the parties according to the rules of substantive law' (CCA 1804)" (Buvis v Buvis, 38 Misc 3d 133[A], 2013 NY Slip Op 50061[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Even in small claims court, however, unsworn comments or arguments are of no evidentiary value (see Rosse v Kings Nissan, Inc., 29 Misc 3d 134[A], 2010 NY Slip Op 51960[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Platinum Ridge Hoa, Inc. v [*2]Rovenskiy, 24 Misc 3d 136[A], 2009 NY Slip Op 51501[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Unlike our dissenting colleague, we cannot find that the trial court based its dismissal of the action solely on a determination as to plaintiff's credibility. Rather, the trial court's colloquy with defense counsel makes it impossible for us to determine whether it was improperly influenced by the extensive unsworn comments and hearsay references of defense counsel. In these circumstances, we conclude that substantial justice (see CCA 1804, 1807) requires that there be a new trial.

Accordingly, the judgment is reversed and the matter is remitted to the Small Claims Part of the Civil Court for a new trial.

Pesce, P.J., and Elliot, J., concur.

Weston, J. dissents and votes to affirm the judgment in the following memorandum:

At issue on this appeal, put simply, is whether the small claims court erred in rejecting plaintiff's version of events. In my opinion, the court did not, and I find no basis for disturbing the court's credibility determination on appeal. Accordingly, I respectfully dissent.

It is well settled that issues of credibility are appropriately resolved by the trier of fact, who is in the best position to assess a witness's demeanor (see R.P. Cautela Realty, Inc. v McDonald, 239 AD2d 481 [1999]; McMullen v Arnone, 79 AD2d 496, 498 [1981]; Busari v Rahman, 42 Misc 3d 147[A], 2014 NY Slip Op 50365[U] [App Term, 2d,

11th & 13th Jud Dists 2014]). Such findings are accorded great deference and should not be disturbed on appeal if supported by a fair interpretation of the evidence (see McCray v Petrini, 212 AD2d 676 [1995]; McMullen v Arnone, 79 AD2d at 498). "This standard applies with greater force to judgments rendered in the Small Claims Part, which is commanded to do substantial justice between the parties according to the rules of substantive law' " (Williams v Roper, 269 AD2d 125, 126 [2000], quoting CCA 1804). Thus, "errors in the presentation of evidence" are neither reviewable on appeal nor a basis for reversal (id. at 126-127).

Here, whether plaintiff's failure to timely board a plane was defendant's fault or that of plaintiff herself merely raised an issue of credibility that was properly resolved by the Civil Court. Noting the inconsistencies in plaintiff's version of events, the court evidently rejected plaintiff's assertions that she arrived at the airport on time, but ultimately missed her flight because defendant's ticket machines were not functioning and one of defendant's check-in windows was closed. Other than her own self-serving, ambiguous statements, plaintiff offers no proof that her failure to obtain a boarding pass and board the plane in a timely manner was the fault of defendant. The fact that defendant did not present any witnesses is irrelevant, since defendant had no burden to come forward with any proof. The burden of proof rests only on plaintiff, and substantial justice does not relieve plaintiff of that burden. Plaintiff's last minute

attempt, on appeal, to fill in the evidentiary gaps by seeking additional discovery is unpreserved.

Accordingly, I vote to affirm the judgment.

Decision Date: April 07, 2015