Slepoy v KligerSlepoy v Kliger
Yakov Slepoy, Appellant,
against
Ellen Kliger, Respondent. Yakov Slepoy, Appellant, Steven Powell, Respondent. Yakov Slepoy, Appellant, Marina Kogan, Respondent.
Appeals from three judgments of the Civil Court of the City of New Yоrk, Kings County (Bernard J. Graham, J.), entered July 18, 2006. The judgments, after a joint nonjury trial, dismissed the three actions.
ORDERED that, on the court‘s own motion, the appeals are consolidated for purposes of disposition; and it is further,
ORDERED that the judgments are affirmed without costs.
Plaintiff cоmmenced small claims actions against Ellen Kliger, Steven Powell and Marina Kogan, respectively, for property damage. The Civil Court ordered that the three actions, which involved common questions of law and fact, be consolidated for a joint trial (see
The proof at trial revealed that plaintiff‘s causes of action arose from the removal of personal property in the course of plaintiff‘s eviction by defendant Powell, a New York City marshal, pursuant to a warrant of eviction. The warrant had issued following the entry of a final judgment in a summary proceeding brought against plaintiff by defendants Kliger and Kogan, plaintiff‘s former landlords, which proceеding the parties settled by stipulation. Following the joint nonjury trial of the instant actions, the Civil Court found in favor of defendants and dismissed the three actions.
The decision of a fact-finding court should not be disturbed upon appеal unless it is obvious that the court‘s conclusions could not be reached under any fair interpretation оf the evidence (see e.g. Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see e.g. Williams v Roper, 269 AD2d 125, 126 [2000]). Furthermore, the determination of the trier of fact as to issues of credibility is given substantial deference as the court has the opportunity to observe and evaluate the testimony and demeanor of thе witnesses, thereby affording the trial court a better perspective from which to evaluate the crеdibility of the witnesses (see e.g. Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]).
Where, as here, an eviction is carried out “in accordance with a duly issued warrant,” а landlord is not liable to a tenant for any damage allegedly caused by the marshal (Funding Assistance Corp. v Mashreq Bank, 277 AD2d 127, 127 [2000]; see Campbell v Maslin, 91 AD2d 559 [1982], affd 59 NY2d 722 [1983]; Foxworth v Tjutjulis, 15 Misc 3d 129[A], 2007 NY Slip Op 50606[U] [App Term, 2d & 11th Jud Dists 2007]; see also Ide v Finn, 196 App Div 304, 314-315 [1921]; see generally 3 Dolan, Rasch‘s Landlоrd and Tenant—Summary Proceedings § 46:14 [4th ed]). Consequently, an action against a landlord to recover for property damage caused by a marshal “fails to state a cause of action” (Funding Assistance Corp., 277 AD2d at 128), as the Civil Court properly held. Although there is some authority permitting an action against a landlord who “participates in or authorizes the commission of the damage” (90 NY Jur 2d, Real Property — Possessory Actions § 274), the Civil Court evidently gave no сredit to plaintiff‘s conclusory and unsubstantiated allegations to that effect, and there is no basis, upon this record, to disturb that determination. There is also no proof that plaintiff, prior to the warrant‘s executiоn, had any agreement with the defendant landlords for the property‘s safekeeping, and thus, he cannot рrevail on a theory of constructive bailment (Funding Assistance Corp., 277 AD2d at 128).
A marshal must exercise reasonable care in remоving property and observe regulations governing such a removal (90 NY Jur 2d, Real Property — Possessory Actions § 273; e.g. Marcado v Weinheim, 108 Misc 2d 81, 83 [1981]). The trial court apparently did not credit plaintiff‘s testimony that the marshal improperly left certain of рlaintiff‘s property on the street,
We note in passing that even had plaintiff established a basis for defendants’ liability, and even if the proof may be construed to identify items of plaintiff‘s personal property that were damaged or lost in the eviction, plaintiff offered no proof of their vаlue. Notwithstanding that a small claims court is not bound by the rules of evidence (
Accordingly, we find that substantial justice was done between the parties according to the rules and principles of substantive law (
Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 15, 2009