Opinion
570273/05.
Decided December 7, 2005.
Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court, New York County (Debra Samuels, J.), entered on or about September 25, 2004 after trial, in favor of defendant dismissing the action.
Judgment (Debra Samuels, J.), entered on or about September 25, 2004, reversed, without costs, and judgment awarded to plaintiff in the principal amount of $2,000.
PRESENT: McCooe, J.P., Gangel-Jacob, Schoenfeld, JJ.
Under the terms of the parties' written agreement, plaintiff agreed to pay "a non-refundable deposit of $2,000" to "guarantee [her] surgery time." The uncontroverted evidence at trial established that since plaintiff cancelled the surgery two weeks prior to the scheduled date, defendant was not billed for operating room/surgery time by the hospital. Since the deposit was to guarantee plaintiff's "surgery time" and defendant incurred no loss in connection therewith, we find that the judgment in favor of defendant did not accomplish substantial justice consistent with the rules and principles of substantive law (CCA 1804, 1807).
This constitutes the decision and order of the court.