Tornheim v. Kohn

31 A.D.3d 748, 818 N.Y.S.2d 491

Opinion

In an action, inter alia, to recover damages for assault and battery, the plaintiff appeals from a judgment of the Supreme Court, Rockland County (Friedman, J.H.O.), entered June 17, 2005, which, after a nonjury trial, is in favor of the defendant and against him dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

“Where, as here, a case is tried without a jury, our power to review the evidence is as broad as that of the trial court, bearing in mind . . . that due regard must be given to the decision of the Trial Judge who was in a position to assess the evidence and the credibility of the witnesses” (Universal Leasing Servs. v Flushing Hae Kwan Rest., 169 AD2d 829, 830 [1991]; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hodge v Losquadro Fuel Corp., 29 AD3d 861 [2006]; D’Agnese v Spinelli, 29 AD3d 851 [2006]). The trial court’s determination that the plaintiff failed to establish his case by a preponderance of the evidence rested in large measure upon its assessment of the credibility of the parties, who gave conflicting accounts of the alleged assault. The trial court’s determination is supported by the record, and we find no reason to disturb it (see Kahan v Sulaymanov, 24 AD3d 612 [2005]; Bucci v Bucci, 231 AD2d 665 [1996]).

The plaintiffs remaining contentions are without merit. Krausman, J.P., Mastro, Spolzino and Covello, JJ., concur.