Musella v Tufano

[*1] Musella v Tufano 2016 NY Slip Op 51082(U) Decided on July 8, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 8, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., GARGUILO and BRANDS, JJ.
2015-533 N C

Susan C. Musella, Appellant,

against

Carmine Tufano and DEBRA TUFANO, Respondents.

Appeal from a judgment of the District Court of Nassau County, First District (Douglas J. Lerose, J.), entered October 2, 2014. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover veterinary expenses incurred as a result of defendants' dog having attacked plaintiff's dog. Following a nonjury trial, the District Court dismissed the action.

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]). 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 plaintiff failed to establish a prima facie case that defendants' dog had vicious propensities or that defendants had knowledge of their dog's vicious propensities (see generally Petrone v Fernandez, 12 NY3d 546, 550 [2009]; Bard v Jahnke, 6 NY3d 592, 596 [2006]; Sers v Manasia, 280 AD2d 539, 540 [2001]; Mastroeni v Graziano, 19 Misc 3d 128[A], 2008 NY Slip Op 50510[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008]). As the District Court's determination is supported by the record and provides the parties with substantial justice (see UDCA 1804, 1807), the judgment is affirmed.

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

Decision Date: July 08, 2016