Fryling v. Omer Construction Co.

286 A.D.2d 983, 730 N.Y.S.2d 914, 2001 N.Y. App. Div. LEXIS 8878

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 2001
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Plaintiffs commenced this action seeking payment due under a contract with defendant for their work in sealing parking lots, and defendant counterclaimed for damages allegedly caused by plaintiffs while completing the project. We reject defendant’s contention that Supreme Court’s decision and underlying findings of fact are against the weight of the evidence. On an appeal from a judgment after a bench trial, this Court is empowered to grant the judgment we find warranted by the facts, “taking into account in a close case 'the fact that the trial judge had the advantage of seeing the witnesses’ ” (Northern Westchester Professional Park Assocs. v Town of Bedford, 60 NY2d 492, 499; see, Don Vito v State of New York, 182 AD2d 1070, 1071). However, “the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses” (Claridge Gardens v Menotti, 160 AD2d 544, 544-545; see, Thoreson v Penthouse Intl., 80 NY2d 490, 495, rearg denied 81 NY2d 835). Here, the parties gave conflicting testimony, and the court had the advantage of seeing the witnesses and assessing their credibility. We conclude that the court’s decision and findings of fact are supported by a fair interpretation of the evidence. (Appeal from Order of Supreme Court, Erie County, Roberts, J.H.O. — Contract.) Present — Pine, J. P., Hayes, Hurlbutt, Burns and Gorski, JJ.