EMANON AFFORDABLE LTD v. NOVACK (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (George Nolan, J.), dated April 18, 2025.  The judgment, after a nonjury trial, is in favor of the defendant and against the plaintiff dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

The plaintiff commenced this action against the defendant alleging, inter alia, breach of contract, unjust enrichment, and fraud.  In a judgment in favor of the defendant and against the plaintiff dated April 18, 2025, after a nonjury trial, the Supreme Court dismissed the complaint, finding that the plaintiff did not meet its burden of proof on the ground that the plaintiff's principal was not a credible witness.  The plaintiff appeals.

“[L]itigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel or the trial court” (Rodriguez v. City of New York, 67 AD3d 884, 886).  However, “[i]t is well settled that trial counsel is afforded wide latitude in presenting arguments” (Gregware v. City of New York, 132 AD3d 51, 61).  “[W]here counsel ․ exceeds the bounds of legal propriety, it is the duty of the opposing counsel to make a specific objection and for the court to rule on the objection ․ and to admonish counsel from repetition of improper remarks” (Kleiber v. Fichtel, 172 AD3d 1048, 1051).  “Where no objection is interposed, a new trial may be directed only where the remarks are so prejudicial as to have caused a gross injustice, and where the comments are so pervasive, prejudicial, or inflammatory as to deprive a party of a fair trial” (id. at 1052).

Here, during the nonjury trial, the plaintiff failed to object to the bulk of the challenged comments, and in any event, any alleged misconduct during trial was not so pervasive or prejudicial as to have deprived the plaintiff of a fair trial (see Yu v New York City Health & Hosps.  Corp., 191 AD3d 1040, 1043).

“In reviewing a determination made 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 that the trial judge had the advantage of seeing and hearing the witnesses” (Matter of Duplessis, 123 AD3d 927, 927 [internal quotation marks omitted] ).  “Where the 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” (Matter of Tenzer, 144 AD3d 1044, 1045 [internal quotation marks omitted] ).

In the present matter, the determination of the Supreme Court rested almost entirely on the credibility of the competing witnesses.  The assessment of credibility by the court, which had the opportunity to see and hear the witnesses and assess their demeanor, is entitled to great deference, and we find no reason to disturb it here (see id.).

Accordingly, we affirm the judgment.

DUFFY, J.P., FORD, LOVE and GOLIA, JJ., concur.