Zerbi v. Perfect Body Image, LLC

68 Misc. 3d 134(A), 2020 NY Slip Op 51021(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: August 27, 2020
• Docket: 2019-1348 S C
• Status: Unpublished

Opinion

Zerbi v Perfect Body Image, LLC (2020 NY Slip Op 51021(U)) [*1]

Zerbi v Perfect Body Image, LLC

2020 NY Slip Op 51021(U) [68 Misc 3d 134(A)]

Decided on August 27, 2020

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 27, 2020

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : THOMAS A. ADAMS, P.J., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ
2019-1348 S C

Plinio Zerbi, Appellant,

against

Perfect Body Image, LLC, Respondent.

Plinio Zerbi, appellant pro se. Doreen J. Shindel & Associates, P.C. (Doreen J. Shindel of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated May 23, 2019. The order granted defendant's motion to dismiss the action.

ORDERED that the order is affirmed, without costs.

In March 2017, plaintiff purchased a package of laser hair restoration treatments from defendant for $4,800. Plaintiff paid for the treatments using a credit card provided by First Electronic Bank. In February 2019, plaintiff commenced this small claims action to recover the sum of $5,000, for "dissatisf[action] with results" and usury. Defendant moved to dismiss the action, asserting, among other things, that defendant, a provider of appearance enhancement services, is not affiliated in any way with First Electronic Bank, that First Electronic Bank is an independent consumer financing company, and that defendant had made no guarantees with respect to the results of its hair restoration treatments. As to the latter assertion, defendant attached to its motion papers several exhibits, including defendant's Credit Card Financing and Refund Policy, which plaintiff signed, which states, "I understand that results are subjective in nature and are reliant on client's (at home) participation," "I understand there are no guarantees of results," and "No guarantees of results or efficacy [have] been made to me." Plaintiff also signed defendant's consent form, which states, "The clinical result, as well as the optimal number of treatments, varies from one individual to another," "Some individuals may not respond to laser treatment," and "There is no guarantee of efficacy; no guarantee of efficacy has been made to me." The District Court granted defendant's motion to dismiss.

In a small claims action, our review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UDCA 1807; see UDCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2006]). As the record supports the District Court's determination, dismissal of the small claims action provided the parties with substantial justice according to the rules and principles of substantive law (see UDCA 1804, 1807).

Accordingly, the order is affirmed.

ADAMS, P.J., GARGUILO and EMERSON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 27, 2020