Monday, April 24, 2017


Of course, not all litigation is frivolous. Some, such as court action to protect a child or prosecute a crime, is completely just and proper. However when legal arguments are not supported by the applicable laws, or are based on false testimony, or have been commenced simply to cause distress, harm or fear to the other party, the litigation is effectively a form of abuse attempted via the legal system. Small claims court is the "people's court" allowing litigants to bring an action without the need for counsel. But sometimes, counsel should be consulted to at least consider the merits of bring an action and maybe to tell the client that the proceeding might be considered frivolous.

This case was decided on April 14 - OMWATHATH v. MOOTOOSAMMY, 2017 NY Slip Op 50500 - NY: Appellate Term, 2nd Dept. 2017:

"Plaintiff commenced a Civil Court action against defendant, his former tenant, to recover unpaid use and occupancy, and defendant interposed a counterclaim for harassment. Plaintiff also commenced a separate small claims action to recover for damage that was allegedly done to the door of his apartment by defendant. The actions were consolidated by the Civil Court. At a nonjury trial, defendant testified that any rent arrears had been waived by plaintiff in a so-ordered stipulation in a proceeding brought in the Housing Part, and introduced into evidence a copy of the stipulation and a receipt stating that defendant had moved out of the apartment, "giving it back in good condition," and was returning the keys. Insofar as is relevant to this appeal by plaintiff, following the trial, the Civil Court dismissed the complaint and the cause of action that had been asserted in the small claims action.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

The Civil Court's determination is supported by the proof at trial. Plaintiff did not deny that he had signed the receipt proffered at trial stating that defendant vacated the premises and that the premises was in "good condition." Moreover, a review of the record establishes that plaintiff did not even allege that defendant damaged his door, much less establish the damages he allegedly sustained for the door's damage. In addition, the Civil Court could credit defendant's testimony that he timely vacated but was unable to contact plaintiff to return the keys until two days later."

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