DSM, Inc. v. Paul Reiser Excavating, Inc.

• Decision Date: 04 December 2013
• Citation: 2013 N.Y. Slip Op. 08045,112 A.D.3d 576,976 N.Y.S.2d 203
• Parties: DSM, INC., appellant, v. PAUL REISER EXCAVATING, INC., respondent.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 576

976 N.Y.S.2d 203

2013 N.Y. Slip Op. 08045

DSM, INC., appellant,

v.PAUL REISER EXCAVATING, INC., respondent.

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

Dec. 4, 2013.

Thomas J. Cione, Goshen, N.Y., for appellant.

Levinson, Reineke & Ornstein, P.C., Central Valley, N.Y. (Justin E. Kimple of counsel), for respondent.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.

In an action to recover unpaid rent, the plaintiff appeals from a judgment of the Supreme Court, Orange County (Onofry, J.), entered March 20, 2012, which, upon a decision of the same court, made after a nonjury trial, is in favor of it and against the defendant in the principal sum of only $2,750.

ORDERED that the judgment is affirmed, with costs.

To the extent that the plaintiff challenges the legal sufficiency of the evidence to support the Supreme Court's determination as to the defendant's counterclaim, the issue is unpreserved for appellate review, since it failed to move pursuant to CPLR 4401 for judgment as a matter of law at the close of the evidence ( see Miller v. Miller, 68 N.Y.2d 871, 873, 508 N.Y.S.2d 418, 501 N.E.2d 26; Zere Real Estate Servs., Inc. v. Parr Gen. Contr. Co., Inc., 102 A.D.3d 770, 772, 958 N.Y.S.2d 708).

The plaintiff's contention that the Supreme Court's factual determinations were contrary to the weight of the evidence is without merit. “Although an appellate court's authority in reviewing a nonjury determination is as broad as that of the trial court, due deference is given to the trial court's determination” with respect to issues of credibility, and the Appellate Division must “tak[e] into account that in a close case the trial judge has the advantage of seeing and hearing the witnesses” (Marinoff v. Natty Realty Corp., 34 A.D.3d 765, 767, 826 N.Y.S.2d 113; 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; Zere Real Estate Servs., Inc. v. Parr Gen. Contr. Co., Inc., 102 A.D.3d at 772, 958 N.Y.S.2d 708). With that limitation in mind, the Appellate Division may render the judgment that is warranted by the facts ( see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d at 499, 470 N.Y.S.2d 350, 458 N.E.2d 809).

Here, the Supreme Court was faced with conflicting testimony as to the parties' agreement, and it chose to credit the evidence indicating that the defendant entered into...