Devora Stiefel, Appellant, v. Emma Babakhanova and Angela Babakhanova, Respondents. (2024)

ORDERED that the judgment, insofar as appealed from, is affirmed, without costs.

Plaintiff commenced this small claims action to recover the principal sum of $5,000, alleging that defendants, her neighbors, had removed trees from her property without her permission. Defendants interposed a counterclaim for $5,000 in property damage due to plaintiff's alleged removal of 13 feet of defendants' trees and planting of new trees on defendants' property. Following a nonjury trial, at which both parties submitted conflicting surveys, the District Court dismissed both plaintiff's cause of action and defendants' counterclaim. Plaintiff appeals from so much of the judgment as dismissed her cause of action.

In a small claims action, our review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UDCA 1807; see UDCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]).

Upon a review of the record, we find that the judgment, insofar as appealed from, rendered substantial justice between the parties according to the rules and principles of substantive law (see UDCA 1804, 1807). Plaintiff failed to demonstrate by a preponderance of the evidence that the trees that were removed were located on her property, since the surveys submitted by plaintiff conflicted with the survey presented by defendants (see Chamois v Gargiulo, 39 Misc 3d 133[A], 2013 NY Slip Op 50522[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2013]) and, absent expert testimony, it cannot be determined which of the surveys was accurate (see Marone v Kally, 109 AD3d 880, 881 [2013]; Thomson v Nayyar, 90 AD3d 1024, 1026 [2011]; Raab v Lefkowitz, 76 AD3d 619, 621 [2010]; Seaman v Three Vil. Garden Club, Inc., 67 AD3d 889, 890 [2009]). Consequently, plaintiff's cause of action was properly dismissed.

Accordingly, the judgment, insofar as appealed from, is affirmed.

WALSH, J.P., McCORMACK and GOLDBERG-VELAZQUEZ, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: August 13, 2024