Opinion
23971.
Decided December 19, 2003. As corrected through Tuesday, June 22, 2004.
Appeal, in the first above-entitled action, from a judgment of the City Court of White Plains, Westchester County (Roseanna Washington, J.), entered November 12, 2002. The judgment awarded plaintiff the sum of $1,806.86.
Appeal, in the second above-entitled action, from a judgment of the City Court of White Plains, Westchester County (Roseanna Washington, J.), entered November 12, 2002. The judgment, insofar as appealed from, dismissed the claim against defendant.
John N. Romano, Yonkers, for appellant.
Charles Murov, respondent pro se.
OPINION OF THE COURT.
MEMORANDUM.
Judgment in favor of plaintiff Murov (action No. 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 No. 2) unanimously affirmed without costs.
Plaintiff Charles Murov commenced a small claims action against defendant Ronald Celentano (action No. 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 No. 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). 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).
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; Devivo v. Actuarial Ideas, 2003 N.Y. Slip Op 51210[U] [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). 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 [App Term, 2d Dept 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 nonexpert observer and where estimates and/or actual costs of repairs are provided (UCCA 1804, 1804-A; see Rasulo v. Goodman, 2002 N.Y. Slip Op 40166[U] [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 No. 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 [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 [Poughkeepsie City Ct 1996], affd 173 Misc.2d 672 [App Term, 2d Dept 1997]; see also Siegel, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, UCCA 1304, 2004 Pocket Part, at 209).
Doyle, P.J., Rudolph and Skelos, JJ., concur.