Wright v Eudes

[*1] Wright v Eudes 2018 NY Slip Op 51117(U) Decided on July 12, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ANTHONY MARANO, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ
2017-449 S C

Sandra Wright, Appellant,

against

Daniel Eudes, Respondent.

Sandra Wright, appellant pro se. Daniel Eudes, respondent pro se (no brief filed).

Appeal from a judgment of the District Court of Suffolk County, Fifth District (Vincent J. Martorana, J.), entered August 5, 2016. The judgment, insofar as appealed from, after a nonjury trial, dismissed plaintiff's cause of action.

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

Plaintiff commenced this small claims action to recover the sum of $920 for damage allegedly caused to her property by bamboo which grew onto her property but which had originated from defendant's property. At a nonjury trial, plaintiff testified that she had paid $1,000 for the removal of the bamboo from her property and submitted photographs and an unsigned bill in support of her claim. Following the trial, insofar as is relevant to this appeal, the District Court dismissed plaintiff's cause of 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]). Plaintiff argues on appeal that the judgment should be reversed and judgment awarded in her favor because defendant orally agreed to pay her $900 for the removal of the bamboo. While she testified at trial that defendant "said that he was going to pay," the court apparently did not credit that testimony. The determination of a trier of fact as to issues of [*2]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).

Plaintiff annexed to her brief, and asks this court to consider, a signed copy of the unsigned bill she had submitted at trial. As this document is dehors the record, it cannot be considered on this appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]). In any event, it was not marked paid (see UDCA 1804).

As plaintiff has not shown a basis to disturb the judgment, we find that the judgment, insofar as appealed from, provided the parties with substantial justice according to the rules and principles of substantive law (see UDCA 1804, 1807; Ross v Friedman, 269 AD2d 584; Williams v Roper, 269 AD2d 125).

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

MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2018