Cohen v. Kalfa

• Decision Date: 20 March 2019
• Docket Number: Index No. 26327/09,2016–11581
• Citation: Cohen v. Kalfa, 170 A.D.3d 949, 94 N.Y.S.3d 859(Mem) (N.Y. App. Div. 2019)
• Parties: Jess COHEN, Respondent, v. Eli KALFA, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 949

94 N.Y.S.3d 859 (Mem)

Jess COHEN, Respondent,

v.Eli KALFA, et al., Appellants.

2016–11581

Index No. 26327/09

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

Submitted—November 8, 2018

March 20, 2019

Law Offices of Jay S. Markowitz, P.C., Williston Park, NY, for appellants.

Jeffrey Rosenberg, Garden City, NY, for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOSEPH J. MALTESE, BETSY BARROS, JJ.

DECISION & ORDER

ORDERED that the judgment is affirmed, with costs.

The defendants appeal from a judgment against them, entered after a nonjury trial, in the principal sum of $ 148,405.50, which was found to be owed pursuant to certain agreements the defendants had with the plaintiff pertaining to real estate investments.

Contrary to the defendants' contention, the Supreme Court did not improvidently grant the plaintiff's application to conform the pleadings to the proof (see CPLR 3025[b], [c] ; Murray v. New York , 43 N.Y.2d 400, 405, 401 N.Y.S.2d 773, 372 N.E.2d 560 ).

The authority of this Court is as broad as that of the trial court, and in reviewing a judgment rendered after a nonjury trial, we may render the judgment we find warranted by the facts, taking into account in a close case, that the trial judge had the advantage of seeing and hearing the witnesses (see Northern 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 ). "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....