Opinion
No. 2023-1062 N C
08-13-2024
Devora Stiefel, Appellant, v. Emma Babakhanova and Angela Babakhanova, Respondents.
Devora Stiefel, appellant pro se. Emma Babakhanova and Angela Babakhanova, respondents pro se.
Unpublished Opinion
Devora Stiefel, appellant pro se.
Emma Babakhanova and Angela Babakhanova, respondents pro se.
PRESENT:: GRETCHEN WALSH, J.P., JAMES P. McCORMACK, ELENA GOLDBERG-VELAZQUEZ, JJ
Appeal from a judgment of the District Court of Nassau County, First District (Joseph Nocella, Jr., J.), entered September 14, 2023. The judgment, insofar as appealed from, after a nonjury trial, dismissed plaintiff's cause of action.
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 A.D.2d 584 [2000]; Williams v Roper, 269 A.D.2d 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 A.D.3d 880, 881 [2013]; Thomson v Nayyar, 90 A.D.3d 1024, 1026 [2011]; Raab v Lefkowitz, 76 A.D.3d 619, 621 [2010]; Seaman v Three Vil. Garden Club, Inc., 67 A.D.3d 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.