Opinion
2017-1685 RO C
06-28-2018
Colette FREMONT, Appellant, v. Cary NEMEROFF and Saki Fukasi Martial Arts, Fitness and Yoga, Respondents.
Colette Fremont, appellant pro se. Cary Nemeroff and Saki Fukasi Martial Arts, Fitness and Yoga, respondents pro se (no brief filed).
Colette Fremont, appellant pro se.
Cary Nemeroff and Saki Fukasi Martial Arts, Fitness and Yoga, respondents pro se (no brief filed).
PRESENT: TERRY JANE RUDERMAN, J.P., BRUCE E. TOLBERT, JAMES V. BRANDS, JJ.
ORDERED that the judgment is affirmed, without costs.
Plaintiff commenced this small claims action to recover the principal sum of $450 upon plaintiff's early termination, allegedly for cause, of a one-year contract pursuant to which plaintiff's daughter, aged 11, had enrolled in defendants' martial arts classes. Defendants interposed a counterclaim, seeking to recover $2,067.55 for plaintiff's alleged breach of the aforementioned contract and of a second one-year contract plaintiff had entered into to enroll her son in defendants' martial arts classes. At a nonjury trial, the proof established that plaintiff's children had ceased attending the martial arts classes before their respective contractual periods had ended. Plaintiff testified that she was entitled to terminate the contracts because defendants had placed her daughter in classes with adults 30 to 40 years older than the daughter. Following the trial, the Justice Court dismissed plaintiff's cause of action and awarded defendants the principal sum of $2,067.55 on their counterclaim, without making any express findings of fact or conclusions of law. This appeal by plaintiff ensued.
Appellate review of a small claims judgment is limited to determining 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, 584 [2000] ; Williams v. Roper , 269 AD2d 125, 126 [2000] ). "[A] small claims judgment may not be overturned simply because the determination appealed from involves an arguable point on which an appellate court may differ; the deviation from substantive law must be readily apparent and the court's determination clearly erroneous" ( Tranquility Salon & Day Spa, Inc. v. Caira , 141 AD3d 711, 711 [2016] [internal quotation marks and citations omitted]; accord Forte v. Bielecki , 118 AD2d 620, 621 [1986] ; see Williams v. Roper , 269 AD2d at 126 ).
Here, the record established that plaintiff had executed two contracts enrolling her children, a son and a daughter, respectively, into defendants' martial arts classes. Each contract set forth that defendants agreed to provide the respective child with training classes every week during a 12-month period; that plaintiff, in turn, was obligated to pay tuition for "each and every one of the twelve months"; and that, if the child stopped attending the classes prior to the end of the 12-month period, "the balance of tuition owed shall be due and payable immediately." The fact that plaintiff's daughter had been paired in the classes with adult students who were 30 to 40 years older did not relieve plaintiff of the obligation to pay, as the testimony of defendant Cary Nemeroff, which the Justice Court implicitly credited, established that plaintiff's daughter herself chose to attend those mixed-age classes despite knowing that she might be paired with an adult student during the classes. Thus, plaintiff breached the contracts by failing to pay the tuition due for the remaining time of the 12-month period. Consequently, the Justice Court properly dismissed plaintiff's cause of action, as plaintiff was liable for the unpaid balance on each contract. With respect to the amount of damages awarded to defendants on their counterclaim, plaintiff concedes that the amount awarded is the sum that she would have paid defendants had there been no early termination of the contracts.
Finally, plaintiff's contention that the Justice Court was biased against her is unpreserved for our review, as plaintiff failed to object to the alleged improper remarks of the court at trial (see Matter of Bowe v. Bowe , 124 AD3d 645, 646 [2015] ; Clifford v. Nationwide Custom Servs., Inc. , 51 Misc 3d 132[A], 2016 NY Slip Op 50459[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016] ). In any event, the record demonstrates that the Justice Court treated the parties fairly, properly elicited relevant testimony and did not have a predetermined outcome of the case in mind during the trial (see Matter of Biancoviso v. Barona , 150 AD3d 990, 991 [2017] ; Matter of Bowe v. Bowe , 124 AD3d at 646 ; Clifford v. Nationwide Custom Servs., Inc. , 51 Misc 3d 132[A], 2016 NY Slip Op 50459[U] ). Therefore, the judgment is supported by the record and provided the parties with substantial justice (see UJCA 1804, 1807 ).
Accordingly, the judgment is affirmed.
RUDERMAN, J.P., TOLBERT and BRANDS, JJ., concur.