

Tranquility Salon & Day Spa, Inc. v Caira (2016 NY Slip Op 05637)





Tranquility Salon & Day Spa, Inc. v Caira


2016 NY Slip Op 05637


Decided on July 27, 2016


Appellate Division, Second Department


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


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on July 27, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
THOMAS A. DICKERSON
LEONARD B. AUSTIN
SHERI S. ROMAN, JJ.


2015-08564
 (Index No. 274/12)

[*1]Tranquility Salon & Day Spa, Inc., respondent,
v Angela Caira, appellant.


Zabell & Associates, P.C., Bohemia, NY (Saul D. Zabell of counsel), for appellant.
Mayer, Ross & Hagan PC, Patchogue, NY (Damon A. Hagan of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for breach of contract, the defendant appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts dated May 1, 2015, which reversed a judgment of the District Court of the County of Suffolk, Sixth District (Barbera-Dalli, J.), dated March 29, 2013, made after a nonjury trial, which was in favor of the defendant and against the plaintiff dismissing the complaint, and directed the entry of judgment in favor of the plaintiff and against the defendant in the principal sum of $3,500.
ORDERED that the order dated May 1, 2015, is reversed, on the law, with costs, and the judgment dated March 29, 2013, is reinstated.
An appeal from a small claims judgment is permitted "on the sole ground that substantial justice has not been done between the parties according to the rules and principles of substantive law" (Uniform Dist Ct Act § 1807). " Accordingly, a small claims judgment may not be overturned simply because the determination appealed from involves an arguable point on which an appellate court may differ; the deviation from substantive law must be readily apparent and the court's determination clearly erroneous'" (Forte v Bielecki, 118 AD2d 620, 621, quoting Schiffman v Deluxe Caterers of Shelter Rock, 100 AD2d 846, 846-847 [citations omitted]; see Ross v Friedman, 269 AD2d 584).
Here, the District Court's determination that the subject contract was unenforceable according to its literal terms because it was unconscionable was not clearly erroneous (see Matter of Lawrence, 24 NY3d 320, 337; Sablosky v Gordon Co., 73 NY2d 133, 138-139; Gillman v Chase Manhattan Bank, 73 NY2d 1, 10-12). Accordingly, the Appellate Term should not have reversed the judgment of the District Court, which was in favor of the defendant and against the plaintiff, dismissing the complaint.
The plaintiff's remaining contention is without merit.
MASTRO, J.P., DICKERSON, AUSTIN and ROMAN, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


