Opinion
2008-446 N C.
Decided on January 7, 2009.
Appeal from a judgment of the District Court of Nassau County, First District (Robert H. Spergel, J.), entered December 7, 2007. The judgment, insofar as appealed from, after a nonjury trial, dismissed plaintiffs' cause of action.
Judgment, insofar as appealed from, affirmed without costs.
PRESENT: RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ.
In this small claims action, plaintiffs seek to recover a portion of their total cost to replace a retaining wall allegedly situated upon the common border of the parties' properties. Defendant denied that any part of the original retaining wall had been on her property. In our opinion, the District Court properly dismissed plaintiffs' cause of action. The survey introduced into evidence does not support a finding that the retaining wall was, in fact, a party wall ( see 1 NY Jur 2d, Adjoining Landowners §§ 26, 36). Consequently, we find that substantial justice was done between the parties in accordance with the rules and principles of substantive law (UDCA 1804, 1807). Accordingly, the judgment, insofar as appealed from, dismissing plaintiffs' cause of action, is affirmed.
Rudolph, P.J., Molia and Scheinkman, JJ., concur.