Athletic Movers, Inc. v Varick Realty Corp.

[*1] Athletic Movers, Inc. v Varick Realty Corp. 2021 NY Slip Op 50214(U) Decided on March 12, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2019-1505 K C

Athletic Movers, Inc., Respondent,

against

Varick Realty Corporation, Appellant.

Varick Realty Corporation, appellant pro se. Athletic Movers, Inc., respondent pro se (no brief filed).

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered March 21, 2019. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,423 and dismissed defendant's counterclaim.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this commercial claims action alleging that defendant had tendered a check to plaintiff in the sum of $1,725 in payment of moving services which plaintiff had rendered, but the check was subsequently dishonored. Defendant counterclaimed to recover $5,000 for damage to personal property and failure to provide proper services. At a nonjury trial, the evidence established that plaintiff's employees performed moving services for defendant and, upon completion, defendant gave plaintiff a check in the sum of $1,725. Thereafter, defendant stopped payment on the check. Defendant notified plaintiff that some of defendant's artwork had been damaged during the move and that defendant had overpaid plaintiff for moving supplies. Plaintiff's owner denied that there was any damage to the artwork and offered to reduce the price to compensate for any overpayment for supplies. Defendant submitted, among other things, two estimates showing the cost to repair the artwork. Following the trial, the court awarded plaintiff the principal sum of $1,423 and dismissed defendant's counterclaim.

In a commercial 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" (CCA 1807-A [a]; see CCA 1804-A; 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 Commercial Claims Part of the court (see Williams v Roper, 269 AD2d at 126).

Here, the evidence established that plaintiff performed moving services for defendant and that defendant paid plaintiff $1,725 by check after the moving services were completed, pursuant to a written contract signed by defendant's representative. The evidence also established that defendant had stopped payment on its check. Defendant's office manager informed plaintiff's owner that some artwork had been damaged and that she believed defendant was over-billed for material. Plaintiff denied that any damage had been done to the artwork but offered to take $300 off its bill for any overpayment.

Upon a review of the record, we find that the judgment rendered substantial justice between the parties according to the rules and principles of substantive law (see CCA 1804-A, 1807-A [a]). Defendant failed to establish its counterclaim which sought to recover for damaged artwork allegedly caused by plaintiff during the move, as there was no competent evidence presented regarding the condition of the artwork prior to, and immediately following, the move.

Defendant's remaining contention lacks merit.

Accordingly, the judgment is affirmed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 12, 2021