Opinion
2002-1674 K C.
Decided March 31, 2004.
Appeal by defendant from an order of the Civil Court, Kings County (P. Sweeney, J.), entered on September 25, 2002, denying defendant's post-trial motion for a new trial, and from the judgment of the same court, entered on October 2, 2002, following a non-jury trial, awarding plaintiff the principal sum of $12,567.20.
Appeal from order unanimously dismissed.
Judgment unanimously affirmed without costs.
PRESENT: ARONIN, J.P., GOLIA and RIOS, JJ.
We note at the outset that any right to a direct appeal from the order terminated upon entry of the judgment ( Matter of Aho, 39 NY2d 241, 248). However, the appeal from the judgment brings up for review said order.
This action seeking monies due for goods sold and delivered presents an issue of credibility, which the court below properly resolved in favor of plaintiff. It is well settled that issues of credibility are for the trier of fact who saw and heard the witnesses ( see e.g. Claridge Gardens Inc. v. Menotti, 160 AD2d 544), and will not be disturbed on appeal if supported by a fair interpretation of the evidence ( Jones v. Hart, 233 AD2d 297). This is as true in commercial and contract cases where the facts are in dispute as in any other matter ( see e.g. Fryling v. Omer Constr. Co., Inc., 286 AD2d 983).
A reasonable view of the evidence supports the court's determination that plaintiff had sold plastic bags to defendant and that defendant had failed to pay for them. Plaintiff submitted invoices in the name of Orly Plastic Enterprises, the entity named in the complaint, stating the amounts due and laid a proper foundation for their admission as business records, testifying that he prepared them contemporaneously with the transactions and in the course of his business ( see People v. Kennedy, 68 NY2d 569). The court was entitled to credit these records over defendant's assertion that plaintiff had promised to issue credits for merchandise that defendant did not return. In that regard, even if defendant's assertion that the unreturned products were defective is credited, defendant did not provide evidence that it notified plaintiff of these defects; the court was entitled to credit plaintiff's testimony on this matter over defendant's. In the three instances in which plaintiff issued credit memos, the court deducted the amounts concerned when arriving at its award.
Finally, plaintiff was not required to produce evidence of a demand for payment beyond production of the invoices themselves. The evidence established that defendant ordered and received goods for which it did not pay ( see Sharp Electronics Corp. v. Arkin-Medo, Inc., 86 AD2d 817).
For the same reasons, the court's denial of defendant's post-trial motion to set aside the verdict and for a new trial was proper.
Defendant's remaining contentions have been considered and are without merit.