Volk v. MLD Home Remodeling Corp.

237 A.D.2d 432, 655 N.Y.S.2d 961

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 1997
• Status: Published

Opinion

In three related actions, inter alia, to recover damages for diversion of corporate assets and for breach of a fiduciary duty, the plaintiffs in Action Nos. 1 and 3 appeal from so much of a judgment of the Supreme Court, Kings County (I. Aronin, J.), dated August 29, 1995, as, after a nonjury trial, dismissed the complaints in those actions, and the plaintiff in Action No. 2 and the defendant Melvin Ditkowich in Action No. 1 appeal from so much of the same judgment as dismissed the complaint in Action No. 2 and the counterclaim asserted by the defendant Ditkowich in Action No. 1.

Ordered that the judgment is affirmed, without costs or disbursements.

The determination of the trial court that the plaintiffs in Action Nos. 1 and 3 and the plaintiff in Action No. 2 did not sustain their burdens of proof, which was based primarily on a determination that the testimony they presented was not credible, is entitled to great deference (see, Matter of Scheriff v Scheriff, 221 AD2d 450; 160 Chambers St. Realty Corp. v Register of City of N. Y., 226 AD2d 606). Such a determination should not be disturbed on appeal unless the court’s conclusions could not have been reached under any fair interpretation of the evidence (see, Thoreson v Penthouse Intl., 80 NY2d 490, 495; Great Neck Obstetrics & Gynecology v Bellucci, 218 AD2d 782; Claridge Gardens v Menotti, 160 AD2d 544). In view of the inadequacy of the documentary evidence and the incredible testimony of the parties, we find no basis for disturbing this determination.

The parties’ remaining contentions are without merit. Rosenblatt, J. P., Miller, Ritter and Goldstein, JJ., concur.