Opinion
No. 570485/10.
2012-11-28
Roy A. BUTLER, Plaintiff–Respondent, v. Lennon THOMAS, Defendant–Appellant.
Defendant appeals from an amended judgment of the Small Claims Part of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered on or about February 22, 2011, after trial, in favor of plaintiff and awarding him damages in the principal sum of $2,700.
Present: LOWE, III, P.J., SHULMAN, HUNTER, JR., JJ.
PER CURIAM.
Judgment (Donald A. Miles, J.), entered on or about February 22, 2011, reversed, without costs, and matter remanded for a new trial before another Judge.
This small claims action stems from allegations that defendant orally agreed to prepare and file plaintiff's tax return for a fee (in connection with a tax year not disclosed in the trial record now before us) and that defendant improperly “took out” too much money from the tax refund due plaintiff. After trial, the court awarded plaintiff judgment in the principal amount sued for ($2,700), without setting forth its reasoning. We previously held defendant's appeal in abeyance pending the trial court's issuance of a decision conforming with the specificity requirements of CPLR 4213(b) ( see Butler v. Thomas, 29 Misc.3d 140[A], 2010 N.Y. Slip Op 52070[U][2010] ).
The amended decision issued by the trial court, while perhaps marginally more illuminating than the initial decision already found deficient, still failed to recite the court's foundational findings of fact and is at times confusing and internally inconsistent. The court, pointing generally to its favorable assessment of plaintiff's credibility, conclusorily determined that “a quasi contract existed at the time of the [undescribed] interaction” between the parties, a determination seemingly at odds with plaintiff's own testimony, which the court purports to have found credible, that the parties had reached an express agreement governing the subject matter of the dispute ( see Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388–389 [1987];A. Montilli Plumbing & Heating Corp. v. Valentino, 90 AD3d 961, 962 [2011] ). The trial court's invocation of the familiar maxim concerning the deference generally accorded credibility findings made by a trier of fact does not serve to minimize the difficulties faced by this court in reviewing a liability determination which relies solely on broadly stated conclusions unamplified by a requisite statement of essential facts. Nor did the court essay to explain the basis of its damage award, which, aside from matching plaintiff's ad damnum, is not easily reconciled with the record evidence. In this posture, we are constrained to order a new trial.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.