Kuney v Mancini

[*1] Kuney v Mancini 2015 NY Slip Op 51806(U) Decided on December 8, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TOLBERT, J.P., IANNACCI and CONNOLLY, JJ.
2014-2156 W C

Michael Kuney, Appellant,

against

John Mancini and Frank Cernese, Defendants, -and- Peekskill Travel Bureau, Respondent.

Appeal from a judgment of the City Court of Peekskill, Westchester County (Thomas R. Langan, J.), entered January 29, 2014. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, dismissed so much of the action as was against defendant Peekskill Travel Bureau.

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

In this small claims action, plaintiff seeks to recover the principal sum of $772.10, representing the amount he paid Peekskill Travel Bureau (defendant) in connection with his purchase of a round-trip airline ticket. The evidence at a nonjury trial established that, in August 2012, plaintiff had purchased a round-trip Aeroflot ticket from defendant for a trip to Russia, which was scheduled to run from February to March 2013, and that plaintiff was required to obtain a visa from the Russian consulate as a condition for travel. Approximately one month after he had purchased the ticket, plaintiff informed defendant's employee, John Mancini, that he would not be able to use the ticket, and requested a refund. It was unclear whether plaintiff's inability to use his ticket was due to medical reasons or an inability to obtain a visa.

Mancini testified that before he had sold plaintiff his ticket, he had informed plaintiff that the ticket was nonrefundable. Plaintiff denied this contention. Mancini testified that, after plaintiff had informed Mancini of his inability to travel, Mancini had intervened with Aeroflot on plaintiff's behalf, and had obtained a representation from Aeroflot that if plaintiff would provide Aeroflot with a letter of visa denial, Aeroflot would process a refund. Mancini stated, and plaintiff did not deny, that he had communicated this information to plaintiff. It was undisputed that plaintiff did not thereafter take any steps to apply for a visa or to obtain a visa denial. Insofar as is relevant to this appeal, following the trial, the action was dismissed as against Peekskill Travel Bureau.

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 [*2]law" (UCCA 1807; see UCCA 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).

Although the parties' testimony was inconsistent as to whether defendant had informed plaintiff in advance of his purchase that his ticket was nonrefundable, an invoice plaintiff introduced into evidence, dated August 23, 2012, stated that the ticket was nonrefundable, and also that "proper documentation is required for all travel out of the United States." The City Court's determination, that plaintiff had been informed that his ticket was nonrefundable and was subject to visa restrictions prior to his purchase, was based on its evaluation of the credibility of the witnesses, and was supported by substantial evidence.

Plaintiff contends on appeal that, because he did not sign the invoice, it did not constitute a binding contract. We note, however, that plaintiff's payment of the invoice was processed four days after the invoice date and he did not object to the terms and conditions set forth in the invoice, thereby indicating his consent thereto. We additionally note that plaintiff did not attempt to cancel his ticket until approximately a month after the invoice had apparently been sent to him. Under these circumstances, we conclude that the City Court's judgment rendered substantial justice between the parties in accordance with the rules and principles of substantive law (see UCCA 1804, 1807).

We reach no other issue.

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

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

Decision Date: December 08, 2015