Torian v D'agostino Landscaping & Irrigation

[*1] Torian v D'agostino Landscaping & Irrigation 2022 NY Slip Op 50282(U) Decided on March 3, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JERRY GARGUILO, P.J., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ
2021-181 RO C

Edward Torian and Patricia Torian, Respondents,

against

D'Agostino Landscaping & Irrigation, Appellant.

Condon & Associates, PLLC (Brian Condon of counsel), for appellant. Edward Torian and Patricia Torian, respondents pro se (no brief filed).

Appeal from a judgment of the Justice Court of the Town of Clarkstown, Rockland County (Craig E. Johns, J.), entered January 5, 2021. The judgment, after a nonjury trial, awarded plaintiffs the principal sum of $2,526.55.

ORDERED that the judgment is affirmed, without costs.

Plaintiffs commenced this small claims action to recover the principal sum of $3,000, alleging that two employees of defendant damaged plaintiffs' vehicle with leaf blowers while working at a condominium complex where plaintiffs resided. Following a nonjury trial, the Justice Court awarded plaintiffs the principal sum of $2,526.55.

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" (UJCA 1807; see UJCA 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, 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).

Here, the judgment in favor of plaintiffs reflects that the Justice Court credited the [*2]testimony of plaintiffs' witness that she observed the employees scratch plaintiffs' vehicle with leaf blowers as they walked through the narrow space between the vehicle and the wall containing garbage receptacles, and we find no basis to disturb the court's credibility determination (see Morgan v Long Is. Roofing & Repairs Corp., 63 Misc 3d 143[A], 2019 NY Slip Op 50631[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]). As to the amount to be awarded for the damage, plaintiffs submitted two itemized estimates to establish the reasonable value and necessity of the repairs to the vehicle, and the lower of those estimates indicated that the cost of repairs was $2,526.55 (see UJCA 1804; Five J's Auto., Ltd. v Hughes, 51 Misc 3d 147[A], 2016 NY Slip Op 50753[U] [App Term, 1st Dept 2016]; Dorneval v Sidoti, 48 Misc 3d 126[A], 2015 NY Slip Op 50907[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]). Defendant's remaining contention regarding its allegedly improper party designation is unpreserved for appellate review (see Thomas v Jordan, 66 Misc 3d 54, 57 [App Term, 2d Dept, 9th & 10th Jud Dists 2020]) and, in any event, lacks merit (see UJCA 1814; Laverty v Empire State Bldrs. & Contrs., Inc., 5 Misc 3d 135[A], 2004 NY Slip Op 51486[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2004]). In view of the foregoing, the judgment awarding plaintiffs the principal sum of $2,526.55 rendered substantial justice between the parties (see UJCA 1804, 1807).

Accordingly, the judgment is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 3, 2022