Ng v. Neng

• Decision Date: 11 July 2012
• Citation: 97 A.D.3d 645,947 N.Y.S.2d 886,2012 N.Y. Slip Op. 05504
• Parties: Peter NG, et al., respondents, v. Oscar NENG, et al., appellants.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 645

947 N.Y.S.2d 886

2012 N.Y. Slip Op. 05504

Peter NG, et al., respondents,

v.Oscar NENG, et al., appellants.

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

July 11, 2012.

Michael Kaszubski, P.C., Massapequa, N.Y., for appellants.

Leonard Rodney, Great Neck, N.Y., for respondents.

In an action to recover damages for breach of contract and fraud, the defendants appeal from a judgment of the Supreme Court, Queens County (Flaherty, J.H.O.), entered July 18, 2011, which, upon a decision of the same court dated April 20, 2011, made after a nonjury trial, is in favor of the plaintiffs and against them in the principal sum of $375,500.

ORDERED that the judgment is affirmed, with costs.

The Supreme Court providently exercised its discretion when it denied the defendants' application, made at the commencement of the trial, in effect, to dismiss the complaint pursuant to CPLR 3215(c) ( see Gilmore v. Gilmore, 286 A.D.2d 416, 416, 730 N.Y.S.2d 239;Sutter v. Rosenbaum, 166 A.D.2d 644, 645, 561 N.Y.S.2d 72;Ambers v. C.T. Indus., 161 A.D.2d 256, 256–257, 554 N.Y.S.2d 903;Cutrone v. General Motors Corp., 157 A.D.2d 648, 648–649, 549 N.Y.S.2d 747;DiMartino v. New York State Dept. of Taxation & Fin., 150 A.D.2d 633, 634–635, 541 N.Y.S.2d 844;Myers v. Slutsky, 139 A.D.2d 709, 710, 527 N.Y.S.2d 464;cf. Jones v. Corley, 35 A.D.3d 381, 382, 825 N.Y.S.2d 534;Wilson v. Massapequa Gen. Hosp., 180 A.D.2d 791, 791, 580 N.Y.S.2d 403).

The defendants' contention that the complaint should be dismissed on legal sufficiency grounds since the plaintiffs failed to demonstrate the existence of damages is unpreserved for appellatereview, as the defendants did not move to dismiss the complaint on that ground ( see Blinds to Go, Inc. v. Times Plaza Dev., L.P., 88 A.D.3d 838, 839, 931 N.Y.S.2d 105). Furthermore, upon review of a determination rendered after a nonjury trial, this Court's authority “is as broad as that of the trial court,” and this Court may “render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses” ( 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 [internal quotation marks omitted] ). We discern no reason to disturb the Supreme Court's award of damages to the plaintiff in the principal sum of $375,500 ( see Betsy Meyer Assoc., Inc. v. Lorber, 42 A.D.3d 509, 509, 838 N.Y.S.2d 914;see also Bellizzi v. Huntley Estates, 3 N.Y.2d 112, 115, 164 N.Y.S.2d 395, 143 N.E.2d 802;Ferreira v. Saccento, 286 A.D.2d 366, 366, 729 N.Y.S.2d 178;Kaufman v. Le Curt Constr. Corp., 196 A.D.2d 577, 578, 601 N.Y.S.2d 186;Restatement [Second] of Contracts § 348).

We ...