Opinion
2021-50591
06-24-2021
George V. Wontz, Appellant, v. Dionne Kravetz, Respondent.
George V. Wontz, appellant pro se. Dionne Kravetz, respondent pro se (no brief filed).
Unpublished Opinion
George V. Wontz, appellant pro se.
Dionne Kravetz, respondent pro se (no brief filed).
PRESENT:: TERRY JANE RUDERMAN, P.J., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ
Appeal from a judgment of the Justice Court of the Town of Blooming Grove, Orange County (Stephen J. Smith, J.), entered June 7, 2019. 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 reversed, without costs, and the matter is remitted to the Justice Court for a new trial.
In this small claims action, plaintiff seeks to recover unpaid utility fees from his former tenant. Defendant interposed a counterclaim. Following a nonjury trial, the Justice Court, among other things, dismissed plaintiff's cause of action. Plaintiff appeals from so much of a judgment as dismissed his action, claiming that a new trial is required because none of the witnesses were sworn at trial.
"[A]ll persons testifying in a civil action, even a small claims action, must be sworn" (Diederich v Del Prior, 18 Misc.3d 132 [A], 2008 NY Slip Op 50084[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]; see Tucker v Certified Automotive Servs., 61 Misc.3d 153 [A], 2018 NY Slip Op 51809[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Karim v Khelawan, 59 Misc.3d 136 [A], 2018 NY Slip Op 50516[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Remy v Elegant HVAC, Inc., 51 Misc.3d 146 [A], 2016 NY Slip Op 50742[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Platinum Ridge Hoa, Inc. v Rovenskiy, 24 Misc.3d 136 [A], 2009 NY Slip Op 51501[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Any form of oath is satisfactory as long as it is "calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs" (CPLR 2309 [b]). As the record does not show that any witness was sworn at trial, but rather indicates that plaintiff's case rested upon his unsworn testimony and the statements of his counsel, the judgment, insofar as appealed from, failed to render substantial justice between the parties according to the rules and principles of substantive law (see UJCA 1804, 1807; Karim v Khelawan, 59 Misc.3d 136 [A], 2018 NY Slip Op 50516[U]; Remy v Elegant HVAC, Inc., 51 Misc.3d 146 [A], 2016 NY Slip Op 50742[U]; Platinum Ridge Hoa, Inc. v Rovenskiy, 24 Misc.3d 136 [A], 2009 NY Slip Op 51501[U]; see also Ross v Friedman, 269 A.D.2d 584 [2000]; Williams v Roper, 269 A.D.2d 125, 126 [2000]).
While defendant did not appeal from the judgment, as the trial is, in effect, a nullity due to the unsworn testimony, substantial justice (see UJCA 1804, 1807) requires that a new trial be held on both plaintiff's claim and defendant's counterclaim (see Hecht v City of New York, 60 N.Y.2d 57, 62 [1983] ["It is, of course, axiomatic that, once an appeal is properly before it, a court may fashion complete relief to the appealing party. On rare occasions, the grant of full relief to the appealing party may necessarily entail granting relief to a nonappealing party"]; Gottlieb v Gottlieb, 137 A.D.3d 614, 615 [2016] ["On rare occasions, in granting relief to an appealing party, the nonappealing party may also benefit, particularly where, as here, the issues are hopelessly entangled" (citation omitted)]).
Accordingly, the judgment, insofar as appealed from, is reversed and the matter is remitted to the Justice Court for a new trial.
RUDERMAN, P.J., DRISCOLL and VOUTSINAS, JJ., concur.