Dionisio v Kapp

[*1] Dionisio v Kapp 2015 NY Slip Op 51757(U) Decided on November 30, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., GARGUILO and CONNOLLY, JJ.
2014-1579 S C

Joseph Dionisio, Appellant,

against

Kristin Kapp and David Parsons, Respondents.

Appeal from a judgment of the District Court of Suffolk County, First District (Vincent J. Martorana, J.), entered November 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 District Court for the entry of a judgment awarding plaintiff the principal sum of $2,309.77.

In this small claims action, plaintiff seeks to recover the principal sum of $5,000, alleging that defendants, his former tenants, owe rent and, among other things, caused damage to the apartment. Following a nonjury trial, the District Court found that plaintiff had established his entitlement to recover $459.77 for February rent, carpet cleaning, mousetraps and a bounced check. However, the court found that plaintiff had retained defendants' security deposit, which the record demonstrates was for $650. Accordingly, the court entered a judgment dismissing the action. Plaintiff argues on appeal that, in addition to the $459.77 that the District Court found he was entitled to, he is also entitled to recover for plumbing work, spackling and painting, and a $25 loan.

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" (UDCA 1807; see UDCA 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).

In finding that plaintiff was not entitled to recover for the painting and spackling, the District Court improperly discounted multiple estimates which plaintiff had submitted for the work, which estimates demonstrated, prima facie, the reasonable value and necessity of such services (see UDCA 1804). Since defendants failed to rebut plaintiff's prima facie showing, plaintiff was entitled to recover for the spackling and painting services. However, the record supports the District Court's determination with respect to the remaining items of alleged damage that plaintiff raises on appeal. Under the circumstances presented, we find that plaintiff is entitled to recover the sum of $2,959.77, which includes $2,500 for the spackling and painting [*2]and the $459.77 in damages which the District Court had found.

In view of the fact that plaintiff has retained defendants' $650 security deposit, which sum offsets the amount found to be due to plaintiff (see Rivertower Assoc. v Chalfen, 153 AD2d 196, 199 [1990]; Hoffman v Farucci, 31 Misc 3d 127[A], 2011 NY Slip Op 50453[U] [App Term, 9th & 10th Jud Dists 2011]), substantial justice (see UDCA 1804, 1807) requires that plaintiff be awarded the principal sum of $2,309.77.

Accordingly the judgment is reversed and the matter is remitted to the District Court for the entry of a judgment awarding plaintiff the principal sum of $2,309.77, plus interest.

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

Decision Date: November 30, 2015