Opinion
2005-1613 WC.
Decided October 2, 2006.
Appeal from a judgment of the City Court of Peekskill, Westchester County (William L. Maher, J.), entered January 19, 2005. The judgment, after a nonjury trial, awarded plaintiffs the principal sum of $1,100 and dismissed defendant's counterclaims.
Judgment affirmed without costs.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ.
The instant action was commenced by defendant's former tenants, who sought the return of $1,450, representing the balance of their security deposit, plus $350, representing the amount due from defendant's purchase of their refrigerator which they left on defendant's premises. Defendant counterclaimed, seeking to recover for rent arrears, for damage to the premises, and to cover an unpaid water bill, the cost of painting materials and supplies, and rent credits to his new tenants. After trial, the court awarded plaintiffs the principal sum of $1,100 and dismissed defendant's counterclaims.
In our opinion, the court below did not err in awarding judgment in favor of plaintiffs and in dismissing defendant's counterclaims. Although defendant contended that the statute of frauds was not applicable in this case, there is nothing in the record to indicate that the court thought otherwise. The fact that the court asked a question as to whether the parties' agreement was in writing does not necessarily mean that it believed that a writing was required.
Essentially, the issues in this case involved the credibility of the parties. In a bench trial, the decision of the fact-finding court should not be disturbed on appeal, unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, particularly where the findings rest in large measure on considerations relating to the credibility of witnesses ( see Claridge Gardens v. Menotti, 160 AD2d 544).
We note that defendant correctly pointed out that Mr. Dessner was not sworn as a witness, and his testimony should, therefore, not have been considered by the court ( see e.g. Trensky v. Johnson, 1 Misc 3d 50 [App Term, 1st Dept 2003]). His testimony, however, concerned issues which were collateral to the claims under consideration, and could not have been a basis for the court's determination.
Finally, although it appears from the record that plaintiffs should have been awarded the sum of $1,450, the adequacy of the award is not before us as plaintiffs did not appeal.
Accordingly, the judgment appealed from should be affirmed.
Rudolph, P.J., Angiolillo and Lippman, JJ., concur.