Opinion
December 15, 1994
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
"`On a bench trial, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses'" (Thoreson v Penthouse Intl., 179 A.D.2d 29, 31, affd 80 N.Y.2d 490, quoting Claridge Gardens v Menotti, 160 A.D.2d 544, 544-545), since credibility is best determined by the trier of fact who has the advantage of observing the witnesses (Ausch v St. Paul Fire Mar. Ins. Co., 125 A.D.2d 43, 49, lv denied 70 N.Y.2d 610).
The trial court's finding herein, based primarily upon consideration of the witnesses' credibility, that under the terms of the parties' settlement agreement, defendants were obligated to deliver to the plaintiff a 1984 watercolor on paper, entitled Interno di Catedrals, which was given by the artist Zoran Music to the plaintiff as a gift and thereafter loaned by the plaintiff to defendant Carroll in Paris in late May or early June of 1990, was not against the weight of the credible evidence.
The testimony and documentary evidence adduced at trial established that the defendant did not return the 1984 art work loaned to him by the plaintiff, as required by the parties' settlement agreement, but attempted to palm off a 1986 work of lesser value while retaining the earlier work, thereby attempting to perpetrate a fraud upon the plaintiff and the court itself.
Equally lacking in merit is defendants' contention that the trial court, in reopening the record to receive the testimony of Claude Bernard Haim, violated a mandate of this Court that the trial court render a decision based solely upon the evidence which had already been adduced, set forth in Matter of Carroll v Gammerman ( 193 A.D.2d 202).
Nor did the IAS Court, after weighing all the evidence, err in awarding $10,000 in costs to the plaintiff pursuant to 22 N.Y.CRR part 130, based upon the court's determination that the defendants' fraudulent scheme and false testimony had resulted in substantial expense to the plaintiff and delay in the parties' performance under the settlement agreement since the defendants were provided with notice that such a penalty would be considered and were afforded a reasonable opportunity to be heard (see, Sanders v Copley, 194 A.D.2d 85; Giblin v Anesthesiology Assocs., 171 A.D.2d 839).
We have reviewed the defendants' remaining claims and find them to be without merit.
Concur — Sullivan, J.P., Rosenberger, Wallach and Asch, JJ.