Schiavone v ARB Enters., Inc.

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[*1] Schiavone v ARB Enters., Inc. 2015 NY Slip Op 51248(U) Decided on August 12, 2015 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 12, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., TOLBERT and CONNOLLY, JJ.
2013-2471 P C

Ann Marie Schiavone, Respondent, August 12, 2015

against

ARB Enterprises, Inc. Doing Business as IGUANA WANNA CAR WASH, Appellant, -and- ALAN BATES, Defendant.

Appeal from a judgment of the Justice Court of the Town of Carmel, Putnam County (Joseph J. Spofford, Jr., J.), entered February 13, 2013. The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of $278.98 as against defendant ARB Enterprises, Inc. Doing Business as Iguana Wanna Car Wash.

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

Plaintiff commenced this small claims action seeking to recover the principal sum of $278.98 for damage allegedly caused to the driver's side mirror of her vehicle by an employee of defendant ARB Enterprises, Inc. d/b/a Iguana Wanna Car Wash (ARB) while preparing plaintiff's vehicle to enter defendant's car wash. After a nonjury trial, the Justice Court dismissed the action as against defendant Alan Bates individually but awarded plaintiff the principal sum of $278.98 as against defendant ARB, which now appeals.

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" (UJCA 1807; see UJCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]). Furthermore, 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).

Upon a review of the record, we find that the judgment, insofar as it awarded plaintiff the principal sum of $278.98 as against ARB, provided the parties with substantial justice according to the rules and principles of substantive law (see UJCA 1804, 1807; Ross v Friedman, 269 AD2d 584; Williams v Roper, 269 AD2d 125; see also Mallamace v Eastern Sunrise Car Wash, Inc., 34 Misc 3d 157[A], 2012 NY Slip Op 50425[U] [App Term, 9th & 10th Jud Dists 2012]). [*2]With respect to ARB's contention that it had a sign declaring that it is not responsible for damaged mirrors, it did not establish that the sign was posted in a conspicuous manner so that plaintiff had notice of the terms of the disclaimer of liability or otherwise had agreed to the disclaimer (see Klar v H. & M. Parcel Room, Inc., 270 App Div 538 [1946]; Conboy v Studio 54, 113 Misc 2d 403 [Civ Ct, NY County 1982]). Upon the record before us, we find no basis to disturb the Justice Court's finding that the damage was caused through the negligence of ARB's employee and plaintiff has not been shown to be bound by any disclaimer of liability(see Courtney v Vescio, 131 Misc 2d 381 [Oswego City Ct 1986]). ARB's remaining contentions lack merit, or are either raised for the first time on appeal or dehors the record and, therefore, we do not consider them (see People v Bregaudit, 31 Misc 3d 152[A], 2011 NY Slip Op 51136[U] [App Term, 9th & 10th Jud Dists 2011]; People v Bellamy, 5 Misc 3d 131[A], 2004 NY Slip Op 51347[U] [App Term, 9th & 10th Jud Dists 2004]), as we are bound by the record on appeal (see People v Prior, 4 NY2d 70, 73 [1958]).

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

We incidentally note that the judgment does not correctly reflect the fact that the Justice Court, in its decision after trial, dismissed the action as against defendant Alan Bates.

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


Decision Date: August 12, 2015