Gibraltar Motors, Inc. v Mineola Awnings & Signs

[*1] Gibraltar Motors, Inc. v Mineola Awnings & Signs 2015 NY Slip Op 50916(U) Decided on June 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., IANNACCI and CONNOLLY, JJ.
2013-2702 N C

Gibraltar Motors, Inc., Appellant,

against

Mineola Awnings and Signs, Respondent.

Appeal from a judgment of the District Court of Nassau County, Third District (Joy M. Watson, J.), entered May 3, 2013. The judgment, insofar as appealed from, dismissed plaintiff's cause of action.

ORDERED that the judgment, insofar as appealed from, is affirmed, without costs.

Plaintiff commenced this commercial claims action to recover the sum of $3,800, representing its down payment on a $7,750 contract, pursuant to which defendant built a sign for plaintiff. Defendant counterclaimed to recover the sum of $5,000. Following a nonjury trial, the District Court dismissed both plaintiff's cause of action and defendant's counterclaim. Plaintiff appeals from so much of the judgment as dismissed its cause of action.

In a commercial claims action, our review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UDCA 1807-A [a]; see UDCA 1804-A; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]). 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, 511 [1991]). The deference accorded to a trial court's credibility determinations applies with even greater force to judgments rendered in the Commercial Claims Part of the court given the limited standard of review (see UDCA 1807-A; Williams v Roper, 269 AD2d at 126). Upon a review of the record, we find that the judgment, insofar as appealed from, provided the parties with substantial justice according to the rules and principles of substantive law (see UDCA 1804-A, 1807-A; Ross v Friedman, 269 AD2d 584; Williams v Roper, 269 AD2d 125). The record supports the District Court's implicit determination that, based on the credible evidence, defendant properly performed pursuant to the parties' agreement to build a sign for plaintiff and, therefore, plaintiff's claim was properly dismissed. We note that even if it could be found that defendant had incorrectly made the sign, giving plaintiff the right to reject it (see UCC 2-601), we, nevertheless, would still find that plaintiff's claim was properly dismissed, since defendant was willing to cure any nonconformity (see UCC 2-508), but plaintiff rejected defendant's offer to cure (see Joc Oil USA v Consolidated Edison Co. of NY, 107 Misc 2d 376 [1980]; affd sub nom. T.W. Oil v Consolidated Edison Co. of NY, 84 AD2d 970 [1981], affd 57 NY2d 574 [1982]).

As defendant did not cross-appeal from so much of the judgment as dismissed its counterclaim, we do not reach the propriety of the District Court's determination with respect thereto.

Accordingly, the judgment, insofar as appealed from, is affirmed.

Marano, P.J., Iannacci and Connolly, JJ., concur.

Decision Date: June 16, 2015