Olita v Olita

[*1] Olita v Olita 2015 NY Slip Op 51244(U) Decided on August 6, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., TOLBERT and CONNOLLY, JJ.
2014-411 D C

Rose Mary Olita, Respondent, August 6, 2015

against

Gerald Olita, Appellant.

Appeal from a judgment of the City Court of Poughkeepsie, Dutchess County (Frank M. Mora, J.), entered September 4, 2013. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $5,000.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this small claims action against defendant, her former husband, to recover the sum of $5,000, which, she claimed, was part of $17,000 he owed her. Defendant admitted that he had, at one point, owed plaintiff $17,000, but testified that he had fully paid that amount. He did not offer any documentary evidence to support his testimony that the debt had been paid in full, and stated that he had been unable to procure his bank records in time for trial. Following a nonjury trial, the City Court awarded plaintiff the principal sum of $5,000.

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" (UCCA 1807; see UCCA 1804; 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]). 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).

To the extent that defendant's midtrial explanation that he had been unable to procure his bank records in time for trial can be viewed as a request for an adjournment, the City Court did not improvidently exercise its discretion in denying defendant's application for an adjournment of the trial (see e.g. Matter of Latrell S. [Christine K.], 80 AD3d 618 [2011]; Barnett v Mathis, 36 Misc 3d 154[A], 2012 NY Slip Op 51726[U] [App Term, 9th & 10th Jud Dists 2012]; Elachkar v GEICO Gen. Ins. Co., 34 Misc 3d 155[A], 2012 NY Slip Op 50400[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

As the City Court's determination is supported by the record and provides the parties with substantial justice (see UCCA 1804, 1807), the judgment is affirmed.

We note that we do not consider those items annexed to defendant's brief which, not [*2]having been presented to the City Court, are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

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

Decision Date: August 06, 2015