Eunjung Suk v K & C Building-35, LLC

[*1] Eunjung Suk v K & C Building-35, LLC 2015 NY Slip Op 51055(U) Decided on July 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2014-349 Q C

Eunjung Suk, Appellant, July 7, 2015

against

K & C Building-35, LLC, Respondent, -and- TK MANAGEMENT, Defendant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered June 13, 2013. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, dismissed plaintiff's action against defendant K & C Building-35, LLC.

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

Plaintiff commenced this small claims action against her landlord, K & C Building-35, LLC and the managing agent, TK Management, to recover for water damage to her property caused by a broken pipe in her apartment building. The court dismissed the action against the managing agent, stating that the landlord would be the only potentially liable party. It was plaintiff's contention at trial that defendant K & C Building-35, LLC (defendant) was negligent since it did not contact her in a timely manner upon discovering the leak. After a nonjury trial, the Civil Court dismissed the action.

On an appeal in a small 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" (CCA 1807; see CCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]). Furthermore, the determination of the trier of fact as to the 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]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d at 126).

The evidence supports the Civil Court's findings that defendant had no notice of any potential defect in a pipe inside the wall and that as soon as defendant learned of the broken pipe, [*2]defendant repaired it as quickly as possible. Moreover, it is mere conjecture that, had plaintiff been contacted immediately after the pipe burst, a different result would have occurred. Finally, plaintiff's contention that the doctrine of res ipsa loquitur applies to this case, raised for the first time on appeal, is not properly before this court (see Quinones v Federated Dept. Stores, Inc., 92 AD3d 931 [2012]). As the judgment, insofar as appealed from, provided the parties with substantial justice (see CCA 1804, 1807), it is affirmed.

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

Decision Date: July 07, 2015