Wontz v Kravetz

[*1] Wontz v Kravetz 2021 NY Slip Op 50591(U) Decided on June 24, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 24, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TERRY JANE RUDERMAN, P.J., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ
2019-1551 OR C

George V. Wontz, Appellant,

against

Dionne Kravetz, Respondent.

George V. Wontz, appellant pro se. Dionne Kravetz, respondent pro se (no brief filed).

Appeal from a judgment of the Justice Court of the Town of Blooming Grove, Orange County (Stephen J. Smith, J.), entered June 7, 2019. 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 reversed, without costs, and the matter is remitted to the Justice Court for a new trial.

In this small claims action, plaintiff seeks to recover unpaid utility fees from his former tenant. Defendant interposed a counterclaim. Following a nonjury trial, the Justice Court, among other things, dismissed plaintiff's cause of action. Plaintiff appeals from so much of a judgment as dismissed his action, claiming that a new trial is required because none of the witnesses were sworn at trial.

"[A]ll persons testifying in a civil action, even a small claims action, must be sworn" (Diederich v Del Prior, 18 Misc 3d 132[A], 2008 NY Slip Op 50084[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]; see Tucker v Certified Automotive Servs., 61 Misc 3d 153[A], 2018 NY Slip Op 51809[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Karim v Khelawan, 59 Misc 3d 136[A], 2018 NY Slip Op 50516[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Remy v Elegant HVAC, Inc., 51 Misc 3d 146[A], 2016 NY Slip Op 50742[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Platinum Ridge Hoa, Inc. v Rovenskiy, 24 Misc 3d 136[A], 2009 NY Slip Op 51501[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Any form of oath is satisfactory as long as it is "calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs" (CPLR 2309 [b]). As the record does not show that any witness was sworn at trial, but rather indicates that plaintiff's case rested upon his unsworn testimony and the statements of his counsel, the judgment, insofar as appealed from, failed to render substantial [*2]justice between the parties according to the rules and principles of substantive law (see UJCA 1804, 1807; Karim v Khelawan, 59 Misc 3d 136[A], 2018 NY Slip Op 50516[U]; Remy v Elegant HVAC, Inc., 51 Misc 3d 146[A], 2016 NY Slip Op 50742[U]; Platinum Ridge Hoa, Inc. v Rovenskiy, 24 Misc 3d 136[A], 2009 NY Slip Op 51501[U]; see also Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]).

While defendant did not appeal from the judgment, as the trial is, in effect, a nullity due to the unsworn testimony, substantial justice (see UJCA 1804, 1807) requires that a new trial be held on both plaintiff's claim and defendant's counterclaim (see Hecht v City of New York, 60 NY2d 57, 62 [1983] ["It is, of course, axiomatic that, once an appeal is properly before it, a court may fashion complete relief to the appealing party. On rare occasions, the grant of full relief to the appealing party may necessarily entail granting relief to a nonappealing party"]; Gottlieb v Gottlieb, 137 AD3d 614, 615 [2016] ["On rare occasions, in granting relief to an appealing party, the nonappealing party may also benefit, particularly where, as here, the issues are hopelessly entangled" (citation omitted)]).

Accordingly, the judgment, insofar as appealed from, is reversed and the matter is remitted to the Justice Court for a new trial.

RUDERMAN, P.J., DRISCOLL and VOUTSINAS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 24, 2021