| Praimnath v Torres |
| 2009 NY Slip Op 00668 [59 AD3d 419] |
| February 3, 2009 |
| Appellate Division, Second Department |
| William N. Praimnath et al., Appellants, v Franklin Torres,Respondent. |
—[*1] Weil & Kestenbaum, Bayside, N.Y. (Alan C. Kestenbaum of counsel), forrespondent.
In an action, inter alia, to recover damages for trespass and for injunctive relief to removecertain encroachments from real property, the plaintiffs appeal from a judgment of the SupremeCourt, Queens County (Risi, J.H.O.), entered March 12, 2008, which, upon an amended decisionof the same court dated January 8, 2008, made after a nonjury trial, is in favor of the defendantand against them dismissing the complaint, and in the principal sum of $5,400 on thecounterclaim.
Ordered that the judgment is affirmed, with costs.
Where a matter is tried without a jury, the authority of this Court on appeal "is as broad asthat of the trial court . . . and . . . as to a bench trial [we] may renderthe judgment [we] find[ ] warranted by the facts, taking into account in a close case 'the fact thatthe trial judge had the advantage of seeing the witnesses' " (Northern WestchesterProfessional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983] [citations omitted]).Where the findings of fact "rest in large measure on considerations relating to the credibility ofwitnesses" (Anderson vMastrangelo, 18 AD3d 677, 677 [2005]), deference is owed to the trial court'scredibility determinations. The trial court's dismissal of the complaint here is warranted by thefacts adduced at trial. The testimony of the plaintiff William N. Praimnath established only thatthe defendant lawfully built up two-party walls to accommodate the addition of a third story tohis building (see Varriale v Brooklyn Edison Co., 252 NY 222 [1929]; Negus vBecker, 143 NY 303 [1894]). Accordingly, there is no basis to disturb the Supreme Court'sdetermination in favor of the defendant.
The plaintiffs failed to preserve for appellate review their contention that, in awarding thesum of $5,400 to the defendant on his counterclaim as a reasonable attorney's fee in connectionwith [*2]an earlier successful motion to cancel a notice ofpendency, the Supreme Court improvidently exercised its discretion in failing to require thedefendant's counsel to testify on the issues of his entitlement to an attorney's fee and the amountof the fee to which he was entitled.
The plaintiffs' remaining contentions either are without merit or have been renderedacademic in light of our determination. Skelos, J.P., Dillon, Angiolillo and Eng, JJ., concur.