MUROV v. Charles Murov, Respondent. (2003)

Appeal (in Action 1) by defendant Ronald Celentano from a small claims judgment of the City Court of White Plains, Westchester County (R. Washington, J.), entered November 12, 2002, awarding plaintiff Charles Murov the sum of $1,806.86.

Appeal (in Action 2) by plaintiff R. Celentano, Inc. from so much of a commercial claims judgment of the City Court of White Plains, Westchester County (R. Washington, J.), entered November 12, 2002, as found in favor of defendant dismissing the claim.

Judgment in favor of plaintiff Murov (Action 1) unanimously modified by reducing the amount awarded plaintiff to the principal sum of $777.56;  as so modified, affirmed without costs.

Judgment in favor of defendant Murov (Action 2) unanimously affirmed without costs.

Plaintiff Charles Murov commenced a small claims action against defendant Ronald Celentano (Action 1) alleging that Celentano had performed faulty home contracting work at the Murov residence and seeking the cost to repair the work.   R. Celentano, Inc. commenced a commercial claims action (Action 2), alleging Murov had failed to pay the amount due for the work.   Murov interposed a counterclaim in this action.   The actions were tried together, and the court entered judgments in favor of Murov in each action.

The lower court's findings in favor of Murov were proper.   This case presents issues of credibility.   Such issues are to be resolved by the trier of fact, who saw and heard the witnesses, and will not be disturbed on appeal if it is supported by a fair interpretation of the evidence (Jones v. Hart, 233 A.D.2d 297, 649 N.Y.S.2d 805 [1996] ).   Here, the court, which had documentary and photographic evidence as well as the testimony of the parties before it, made a determination, based upon that evidence, that plaintiff Murov should recover for certain items, and that R. Celentano, Inc. was not entitled to recovery.   This represents a fair interpretation of the evidence (see generally Schiffman v. Deluxe Caterers of Shelter Rock, 100 A.D.2d 846, 474 N.Y.S.2d 87 [1984] ).

 However, the court's award included two items, repair of sprinklers ($240) and rebuilding a shoe rack ($600) for which damages were not sufficiently established pursuant to UCCA 1804, as only one estimate, with no further evidentiary support, was submitted (Borman v. Purvis, 299 A.D.2d 615, 750 N.Y.S.2d 169 [2002];  Devivo v. Actuarial Ideas, N.Y.L.J., Dec. 3, 2003 [App. Term, 9th & 10th Jud. Dists.] ).   Celentano's various procedural and evidentiary complaints are meritless.  UCCA 1804 and 1804-A provide for a simplified procedure not bound by the rules of evidence or court procedure (with certain exceptions not relevant here) (see Buonomo v. Stalker, 40 A.D.2d 733, 336 N.Y.S.2d 687 [1972] ).   While cross-examination of adverse witnesses is a matter of right in any trial of a disputed issue of fact (Graves v. American Express, 175 Misc.2d 285, 669 N.Y.S.2d 463 [App. Term, 2d & 11th Jud. Dists. 1997] ), Celentano has not shown that he was deprived of any opportunity to cross-examine either Charles Murov or Tracy Murov.   To the contrary, the record reflects that both he and his attorney were active participants in the questioning.

 Contrary to Celentano's contention, Murov was not required to produce an expert where, as here, the defective nature of the work is apparent to the non-expert observer and where estimates and/or actual costs of repairs are provided (UCCA 1804;  1804-A;  see Rasulo v. Goodman, N.Y.L.J., Mar. 11, 2002, 2002 WL 1012923 [App. Term, 9th & 10th Jud. Dists.] ).   Indeed, itemized paid bills are deemed by UCCA 1804 and 1804-A to be “prima facie evidence of the reasonable value and necessity of such services and repairs.”

 Nor is there merit to Celentano's contention that his motion (apparently made orally and off the record) to substitute the corporate defendant for himself personally in Action 1 was improperly denied.   The evidence established that he kept records different in form and separate from the corporate books for the Murov job and that he was paid in checks made out to “cash,” not to R. Celentano, Inc. There is no evidence, beyond the bills produced on R. Celentano, Inc. letterhead after the dispute began, that the corporate entity was involved in the subject construction at all.

 Finally, as to Celentano's argument that the judgments were not timely rendered, UCCA 1304, providing for a 30-day period in which the judgment is to be rendered, governs the City Courts.   This provision, like its counterpart, CPLR 4213(c), is precatory, not jurisdictional (see Kessler v. Hunter, 53 Misc.2d 965, 280 N.Y.S.2d 474 [Sup. Ct., Westchester County 1967] ), and the right to a new trial is waived if not requested prior to issuance of a decision (Powell v. Mountainside Agency, 171 Misc.2d 89, 653 N.Y.S.2d 475 [Poughkeepsie City Ct. 1996], affd. 173 Misc.2d 672, 663 N.Y.S.2d 463 [App. Term, 9th & 10th Jud. Dists. 1997];  see also Siegel, Supp. Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 29A, UCCA 1304, 2003 Pocket Part, at 108).