S.P.Q.R. Co. v. United Rockland Holding Co.

On an appeal from a judgment after a nonjury trial, this Court’s power to review the evidence is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, giving due regard to the trial court, which had the advantage of assessing the credibility of the witnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Parry v Murphy, 79 AD3d 713 [2010]; Sabetfard v Djavaheri Realty Corp., 40 AD3d 838 [2007]). Here, the Supreme Court’s determination to credit the testimony of the defendants’ expert surveyor and to dismiss the complaint is supported by the record. Accordingly, there is no basis to disturb the Supreme Court’s determination in favor of the defendants. The appeal from so much of the judgment as awarded disbursements to the defendants pursuant to CPLR 8301 in the sum of $2,052.28 must be dismissed, since the plaintiff failed to move for retaxation of costs before the Supreme Court pursuant to CPLR 8404 (see Geller v Farber, 250 AD2d 808 [1998]; Matter of Verga v Scaduto, 99 AD2d 534 [1984]; Smith v Incorporated Vil. of Patchogue, 285 App Div 1190 [1955]). Mastro, A.P.J., Angiolillo, Belen and Lott, JJ., concur.