49 A.D.3d 710
N.Y. App. Div.
2008

Philip R. Totonelly, Jr., Appellant, v Heather L. Enos, Respondent.

Supreme Court, Appellate Division, Second Department, New York

853 N.Y.S.2d 886

The plaintiff brought this action to determine the sum he owed to the defendant pursuant to a written agreement between the parties, and the defendant interposed a counterclaim for a sum allegedly owed based on the parties’ oral and written agreements. Where, as here, a nonjury trial is involved, this Court‘s power to review the evidence is as broad as that of the trial court, bearing in mind that due regard must be given to the trial court, which was in a position to assess the evidence and the credibility of the witnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 [1983]; Vizzari v Hernandez, 1 AD3d 431 [2003]).

Contrary to the plaintiff‘s contention, the trial court‘s determination awarding judgment in favor of the defendant in the principal sum of $68,550 is warranted by the facts.

The plaintiff‘s remaining contentions are without merit.

Lifson, J.P., Ritter, Florio and Carni, JJ., concur.