BNG Props., LLC v. Sanborn

• Decision Date: 13 September 2017
• Citation: 59 N.Y.S.3d 712 (Mem),153 A.D.3d 1221
• Parties: BNG PROPERTIES, LLC, et al., respondents, v. Michael SANBORN, et al., appellants.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 1221

59 N.Y.S.3d 712 (Mem)

BNG PROPERTIES, LLC, et al., respondents,

v.Michael SANBORN, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 13, 2017.

Amabile & Erman, P.C., Staten Island, NY (Brendan Lantry of counsel), for appellants.

Gaines & Fishler, LLP, Staten Island, NY (Robert M. Fishler of counsel), for respondents.

Appeals from a decision of the Supreme Court, Richmond County(Orlando Marrazzo, Jr., J.), dated November 9, 2015, and an order of that court dated February 17, 2016.The order denied the defendants' motion pursuant to CPLR 4404(b) to set aside the decision, made after a nonjury trial.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (seeSchicchi v. J.A. Green Constr. Corp.,100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,ORDERED that the order is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the respondents.

The plaintiffs commenced this action to recover damages for breach of contract and unjust enrichment, alleging that the defendants owed them unpaid rent and loans.After a nonjury trial, in a decision dated November 9, 2015, the Supreme Court found in favor of the plaintiffs and against the defendants.Thereafter, the defendants moved pursuant to CPLR 4404(b) to set aside the decision.The court denied the motion, and the defendants appeal.

Pursuant to CPLR 4404(b), after a nonjury trial, a court may, on the motion of a party or its own motion, set aside its decision and make new findings of fact or conclusions of law (seeTrimarco v. Data Treasury Corp.,146 A.D.3d 1008, 1009, 46 N.Y.S.3d 640;Paterno v. Strimling,107 A.D.3d 1233, 1234, 968 N.Y.S.2d 643 )."In reviewing a determination made after a nonjury trial, this Court's power is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing and hearing the witnesses"( BRK Props., Inc. v. Wagner Ziv Plumbing & Heating Corp.,89 A.D.3d 883, 884, 933 N.Y.S.2d 99;seeNorthern Westchester Professional Park Assoc. v. Town of Bedford,60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809;Bryant v. Broadcast Music, Inc.,143 A.D.3d 934, 935, 39 N.Y.S.3d 520 )."Where the trial court's findings of fact rest in large measure on considerations relating to the credibility of witnesses, deference is owed to the trial court's credibility determinations"( Bennett v. Atomic Prods. Corp.,132 A.D.3d 928, 930, 18 N.Y.S.3d 443;seeNeiss v. Fried,127 A.D.3d 1044, 1046, 9 N.Y.S.3d 76...