Opinion
No. 2015–375 W C.
03-24-2017
Tricia COLLINS and William Collins, Respondents, v. MOUNT KISCO HOUSING AUTHORITY, Appellant.
Appeal from a judgment of the Justice Court of the Town of Mount Kisco, Westchester County (Mark F. Farrell, J.), entered January 31, 2014. The judgment, after a nonjury trial, awarded plaintiffs the principal sum of $1,350.
ORDERED that the judgment is affirmed, without costs.
In this small claims action, plaintiffs seek to recover the principal sum of $2,500, as the value of property that was allegedly stolen from their apartment. At a nonjury trial, plaintiff Tricia Collins testified that, following an infestation of bedbugs in the apartment that she and her husband, plaintiff William Collins, had rented from defendant, defendant hired Tri–State Environmental Cleaning Service, LLC (Tri–State) to exterminate the bedbugs. On October 5, 2012, Tri–State commenced the extermination process by removing some of plaintiffs' belongings for treatment off the premises. Other items were treated on site, bagged, and left in the apartment. While Tri–State's employees were in the apartment bagging plaintiffs' belongings and preparing the apartment for extermination, one of them took an earpiece that Ms. Collins had left on the kitchen counter.
Ms. Collins further testified that she and her daughter had temporarily moved out of the premises while Tri–State performed additional extermination procedures. Upon her return to the premises in December 2012, Ms. Collins realized that her jewelry box, which had been bagged by Tri–State's employees, was missing. Ms. Collins stated that, apart from her husband, only defendant and Tri–State had had access to the premises during the period when the jewelry box disappeared. Ms. Collins alleged that one of Tri–State's employees had stolen the box.
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 A.D.2d 584 [2000] ; Williams v. Roper, 269 A.D.2d 125 [2000] ). 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 A.D.2d 564 [1992] ; Kincade v. Kincade, 178 A.D.2d 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 A.D.2d at 126 ).
It was undisputed that Tri–State had worked as an independent contractor for defendant. Although one who retains an independent contractor generally is not liable for the negligent or criminal acts of the independent contractor or the independent contractor's employees (see Kleeman v. Rheingold, 81 N.Y.2d 270, 273 [1993] ; Ostroy v. Six Sq. LLC, 100 AD3d 493 [2012] ), that rule is subject to several exceptions, including, among others, the existence of non-delegable duties of the employer, such as those arising out of a specific contractual duty (see Brothers v. New York State Elec. & Gas Corp., 11 NY3d 251, 257–258 [2008] ). Ms. Collins asserted at trial that, under a provision of the lease, defendant was obligated to escort any outside contractors it brought into the apartment, and argued that defendant's failure to do so had been a proximate cause of plaintiffs' damages. Since defendant failed to refute this claim, we conclude that plaintiffs sufficiently established defendant's liability in this matter.
With respect to the issue of the amount the Justice Court awarded plaintiffs, we find no basis to disturb the judgment, as it rendered substantial justice between the parties according to the rules and principles of substantive law (see UJCA 1804, 1807 ; see also 36 N.Y. Jur 2d, Damages § 194 ).
Accordingly, the judgment is affirmed.
BRANDS, J.P., MARANO and TOLBERT, JJ., concur.