Praimnath v. Torres
Full Opinion (html_with_citations)
In an action, inter alia, to recover damages for trespass and for injunctive relief to remove certain encroachments from real property, the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Risi, J.H.O.), entered March 12, 2008, which, upon an amended decision of the same court dated January 8, 2008, made after a nonjury trial, is in favor of the defendant and against them dismissing the complaint, and in the principal sum of $5,400 on the counterclaim.
Ordered that the judgment is affirmed, with costs.
Where a matter is tried without a jury, the authority of this Court on appeal āis as broad as that of the trial court . . . and ... as to a bench trial [we] may render the judgment [we] find[ ] warranted by the facts, taking into account in a close case āthe fact that the trial judge had the advantage of seeing the witnessesā ā (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983] [citations omitted]). Where the findings of fact ārest in large measure on considerations relating to the credibility of witnessesā (Anderson v Mastrangelo, 18 AD3d 677, 677 [2005]), deference is owed to
The plaintiffs failed to preserve for appellate review their contention that, in awarding the sum of $5,400 to the defendant on his counterclaim as a reasonable attorneyās fee in connection with an earlier successful motion to cancel a notice of pendency, the Supreme Court improvidently exercised its discretion in failing to require the defendantās counsel to testify on the issues of his entitlement to an attorneyās fee and the amount of the fee to which he was entitled.
The plaintiffsā remaining contentions either are without merit or have been rendered academic in light of our determination. Skelos, J.P, Dillon, Angiolillo and Eng, JJ., concur.