NSS Fin. Servs., LLC. v. Asdon

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 13, 2016
• Docket: 2016 NYSlipOp 50761(U)
• Status: Published

Opinion

NSS Financial Services, LLC., Plaintiff-Respondent,

against

Eliyahu Asdon, Defendant-Appellant.

In consolidated actions, defendant appeals from three judgments of the Small Claims Part of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), each entered on or about January 7, 2014, after trial, in favor of plaintiff and awarding it damages in the principal sum of $5,000.

Per Curiam.

Judgments (Gerald Lebovits, J.), entered on or about January 7, 2014, affirmed, without costs.

The verdict issued upon the trial of these consolidated small claims actions, awarding plaintiff the amount shown to be due under each of the separate "loan modification fee agreements," finds support in the record and accomplished "substantial justice" between the parties consistent with substantive law principles (CCA 1804, 1807). The evidence, fairly interpreted, support's the trial court's express finding that plaintiff successfully performed mortgage modification services under each of these agreements and that "defendant never paid" for these services.

The actions were not barred by the doctrine against claim splitting, since the claims arose from different agreements (see Melcher v Greenberg Traurig LLP, 135 AD3d 547, 552-553 [2016]). Nor does Judge Masley's 2013 dismissal of two other actions brought by plaintiff have res judicata effect, since the prior actions were based upon separate and distinct agreements.

We also find no abuse of discretion in the denial of defendant's eve-of-trial application for a further adjournment of this matter previously marked "final."

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 13, 2016