Faer v. Vertical Fitness & Racquet Club, Ltd.

126 Misc. 2d 720, 486 N.Y.S.2d 594, 1984 N.Y. Misc. LEXIS 3694

• Court: Appellate Terms of the Supreme Court of New York
• Decided: September 26, 1984
• Status: Published

Opinion

OPINION OF THE COURT

Per Curiam.

Judgment entered May 12, 1983 modified by reducing the amount of plaintiff’s recovery to the sum of $691.20 and, as modified, affirmed, without costs.

We affirm the trial court’s factual finding that enumerated services and facilities promised by the defendant health club were substantially unavailable to the plaintiff during his membership. While the trial court awarded plaintiff the entire cost of his membership ($864), we limit his recovery to the contract price less that “portion of the total price representing the services used or completed” (General Business Law § 624 [3]). The lower court having determined that plaintiff actually received one fifth of the facilities and services to which he was entitled, “substantial justice” (CCA 1807) is served by an award of four fifths of the membership fee, to wit, $691.20. The penalty provided for in General Business Law § 628 is not warranted here.

Dudley, J. P., Riccobono and Parness, JJ., concur.