Biramian v Munisteri

[*1] Biramian v Munisteri 2018 NY Slip Op 51869(U) Decided on December 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : BRUCE E. TOLBERT, J.P., JAMES V. BRANDS, TERRY JANE RUDERMAN, JJ
2017-1438 N C

Razmik Biramian, Appellant,

against

Mark Anthony Munisteri and Mark Anthony Associates, Respondents.

Razmik Biramian, appellant pro se. Robert K. Young & Associates, P.C. (Gary J. Young of counsel), for respondents.

Appeal from a judgment of the District Court of Nassau County, Second District (Darlene D. Harris, J.), entered February 9, 2016. The judgment, insofar as appealed from, after a nonjury trial, dismissed plaintiff's action.

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

In this small claims breach of contract action, plaintiff seeks to recover the principal sum of $5,000 against defendant Mark Anthony Munisteri and his architecture firm, defendant Mark Anthony Associates. Defendants interposed a counterclaim seeking to recover the principal sum of $5,000 for services rendered. At a nonjury trial, plaintiff presented a written contract which provided that defendants were to divide certain property, located in the Town of Hempstead, into two plots and then design a home on each plot. The contract, dated February 18, 2014, contained a provision that approval by the Board of Zoning Appeals would be obtained within one year or else plaintiff would be entitled to a refund of the monies paid. Plaintiff testified that the Town had rejected the plans and there had been no approval by the Board of Zoning Appeals within one year of the contract. Defendant Munisteri testified that, about nine months after the contract had been signed, and after the Town had rejected the plans, there had been no appeal to the Board of Zoning Appeals because plaintiff had changed his mind and modified the terms of the contract, requesting only one new home on one plot, while maintaining the existing home on the other. Munisteri further stated that he had to do additional work on the new designs and applications, and noted that, had plaintiff not changed the terms of the contract, approval would have been obtained by the one-year mark. In April of 2015, defendants submitted two applications to the Board of Zoning Appeals, pursuant to the modified terms, which contained plaintiff's notarized signatures. Soon after, Munisteri requested documents from plaintiff in order to obtain Board of Zoning Appeals approval. Munisteri stated that plaintiff had never complied with Munisteri's request and, thus, approval was never received. Following the trial, the District Court dismissed [*2]plaintiff's action and the counterclaim. Plaintiff appeals from so much of the judgment as dismissed his 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]). 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 [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).

Here, within the year after the execution of the parties' contract, plaintiff requested that defendants submit revised plans and defendants complied with that request. By signing off on the revised plans over a year after the contract had been signed, plaintiff evidenced his approval of the modification of the contract, thereby precluding him from enforcing the one-year provision. As the District Court's determination was amply supported by the evidence, the judgment, insofar as appealed from, rendered substantial justice between the parties according to the rules and principles of substantive law (see UDCA 1804, 1807).

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

TOLBERT, J.P., BRANDS and RUDERMAN, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2018