Duffy v Luby

[*1] Duffy v Luby 2016 NY Slip Op 50960(U) Decided on June 15, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 15, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : GARGUILO, J.P., IANNACCI and BRANDS, JJ.
2014-1160 S C

Eugene Thomas Duffy, Respondent,

against

Samuel D. Luby, Doing Business as HANDYMAN SAM HOME IMPROVEMENTS, Appellant.

Appeal from a judgment of the District Court of Suffolk County, Third District

(C. Stephen Hackeling, J.), entered February 14, 2013 and reinstated January 13, 2014, and an order of the same court entered January 13, 2014. The judgment, after a nonjury trial, awarded plaintiff the net principal sum of $5,476. The order granted plaintiff's unopposed motion to reinstate the judgment.

ORDERED that so much of the appeal as is from the order is dismissed as defendant is not aggrieved by the order (see CPLR 5511); and it is further,

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this breach of contract action to recover the sum of $15,000 that he had paid defendant pursuant to a home improvement contract. Defendant interposed a counterclaim seeking to recover the principal sum of $4,524, representing the balance due on the contract. After a nonjury trial, the District Court awarded plaintiff $10,000 on his cause of action and awarded defendant $4,524 on his counterclaim, for a net judgment in favor of plaintiff in the principal sum of $5,476.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that 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 Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]).

As the District Court's findings were based upon credibility determinations which are supported by the record, we find no reason to disturb the judgment.

Accordingly, the judgment is affirmed.

Garguilo, J.P., Iannacci and Brands, JJ., concur.

Decision Date: June 15, 2016