| Scher v 24 Hour Fitness |
| 2023 NY Slip Op 51245(U) [81 Misc 3d 129(A)] |
| Decided on October 20, 2023 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Jeffrey S. Scher, appellant pro se. 24 Hour Fitness, respondent pro se (no brief filed).
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Lisa Lewis, J.), entered February 8, 2023. The judgment, after an inquest, dismissed the action.
ORDERED that the judgment is affirmed, without costs.
Plaintiff commenced this small claims action seeking a refund in the principal sum of $1,800 of his prepaid personal training sessions at defendant's gym. When defendant failed to appear for trial on January 10, 2023, the court proceeded with an inquest.
At the inquest, plaintiff testified that, on March 11, 2020, he was a member of defendant's gym and that he paid $1,800 for personal training. However, five days later, the gym closed due to Covid-19. When the gym reopened after the pandemic subsided, he expected to continue with the same trainer he had worked with prior to the pandemic. However, that particular trainer no longer worked at the gym and, since plaintiff did not want to work with a new trainer, he requested a refund. Defendant refused to refund the amount plaintiff had paid for personal training. The court reviewed the contract submitted by plaintiff which showed that plaintiff had paid defendant $1,800 for personal training sessions. The court noted that the contract also provided that "the member is purchasing a program and not the services of an individual trainer. The assigned trainer may not be available to conduct any one or all sessions, in which case another trainer will be assigned. The member is not entitled to a refund if the originally assigned trainer is not available." Following the inquest, the Civil Court dismissed the action finding that [*2]plaintiff "failed to provide documentation or testimony to prove monetary damages."
In a small claims action, our review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (CCA 1807; see CCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]). In our view, the judgment provided the parties with substantial justice according to the rules and principles of substantive law (see CCA 1804, 1807; Ross v Friedman, 269 AD2d 584), as plaintiff failed to make out a prima facie case at the inquest (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]).
Accordingly, the judgment is affirmed.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.