Navillus Tile, Inc. v. Concore Construction, Inc.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Geller, Special Ref.), entered August 27, 2009, which, upon a decision of the same court dated August 18, 2008, made after a nonjury trial, is in favor of the defendants and against it dismissing the complaint. Ordered that the judgment is affirmed, without costs or disbursements. In reviewing a determination made after a nonjury trial, the power of the Appellate Division is as broad as that of the trial court and it may render the judgment it finds warranted by the facts, taking into account that in a close case the trial judge had the advantage of seeing and hearing the witnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; 6243 Jericho Realty Corp. v AutoZone, Inc., 71 AD3d 983, 984 [2010], lv denied 14 NY3d 714 [2010]; Vandenburg & Feliu, LLP v Interboro Packaging Corp., 70 AD3d 931, 931-932 [2010]). Here, we find that the judgment of the Supreme Court dismissing the complaint was warranted by the facts presented at trial. Fisher, J.P., Lott, Austin and Sgroi, JJ., concur.