Opinion
2007-1291 N C.
Decided on November 19, 2008.
Appeal from a judgment of the District Court of Nassau County, Second District (Sondra K. Pardes, J.), entered December 7, 2006. The judgment, after a nonjury trial, dismissed plaintiff's claim and awarded defendant the principal sum of $5,000 on its counterclaim.
Judgment modified by reducing the award to defendant on its counterclaim to the principal sum of $695; as so modified, affirmed without costs.
PRESENT: McCABE, J.P., TANENBAUM and MOLIA, JJ.
Plaintiff commenced this small claims action to recover damages in the amount of $1,000 arising out of a dispute involving plaintiff's vehicle. Defendant interposed a counterclaim in the sum of $5,000 wherein it sought to recover storage fees and costs in repairing and towing plaintiff's vehicle. Following a nonjury trial, the court dismissed plaintiff's cause of action and awarded defendant the principal sum of $5,000 on its counterclaim.
Upon a review of the record, we find no basis to disturb the lower court's dismissal of plaintiff's cause of action. Plaintiff failed, inter alia, to properly establish damages, and he conceded that he owed defendant for the towing. In addition, insofar as the court found in favor of defendant on the counterclaim with respect to the $100 fee for towing plaintiff's vehicle and the $595 cost in removing the vehicle's transmission, it rendered substantial justice between the parties ( see UDCA 1804, 1807). However, the award to defendant upon its counterclaim, with regard to the storage fees, did not render substantial justice between the parties as it was not supported by the evidence adduced upon the trial. We find plaintiff's other contentions on appeal to be without merit.
In view of the foregoing, the judgment is modified by reducing the award to defendant on its counterclaim to the principal sum of $695 .
Tanenbaum and Molia, JJ., concur.
McCabe, J.P., dissents in part and concurs in part, and votes to modify the judgment by reducing the award in favor of defendant on its counterclaim to the principal sum of $4,165.
The decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence ( see Claridge Gardens v Menotti, 160 AD2d 544). This standard applies with greater force to judgments rendered in the Small Claims Part of the court ( see Williams v Roper, 269 AD2d 125, 126). Furthermore, the determination of the trier of fact as to issues of credibility is given substantial deference as the court has the opportunity to observe and evaluate the testimony and demeanor of the witnesses, thereby affording the trial court a better perspective from which to evaluate the credibility of the witnesses ( see Vizzari v State of New York, 184 AD2d 564; Kincade v Kincade, 178 AD2d 510, 511).
Upon a review of the record, I, like the majority, find no basis to disturb the lower court's dismissal of plaintiff's cause of action and its determination in favor of defendant on the counterclaim with respect to liability, based upon its conclusion that plaintiff authorized the repairs performed by defendant. As to the storage fees, I disagree with the majority and am of the opinion that defendant sufficiently established its right to same. However, pursuant to section 82.8 of 15 NYCRR, defendant was only entitled to storage fees commencing as of October 1, 2005. The award in favor of defendant on its counterclaim should therefore be reduced to the principal sum of $4,165, which includes the reduced amount due for storage, as well as the amount due for repairs and towing.