Opinion
2013-03999, 2013-09441
06-10-2015
KISSM REALTY CORP., respondent, v. BROOKLYN COMMUNITY MANAGEMENT, LLC, appellant, et al., defendant.
Kinzler Law Group, PLLC, New York, N.Y. (Ben Kinzler of counsel), for appellant. Woods & Lonergan LLP, New York, N.Y. (Lawrence R. Lonergan of counsel), for respondent.
Kinzler Law Group, PLLC, New York, N.Y. (Ben Kinzler of counsel), for appellant.
Woods & Lonergan LLP, New York, N.Y. (Lawrence R. Lonergan of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.
Opinion In an action to recover damages for breach of contract, the defendant Brooklyn Community Management, LLC, appeals from (1) a judgment of the Supreme Court, Kings County (Allman, Ct.Atty.Ref.), dated March 13, 2013, which, after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $111,796.15, and (2) a money judgment of the same court dated September 3, 2013, which is in favor of the plaintiff and against it in the principal sum of $100,353.00.ORDERED that the judgment is affirmed; and it is further,
ORDERED that the money judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The record is inadequate to enable this Court to review the issues raised by the defendant Brooklyn Community Management, LLC (hereinafter the LLC), with respect to an order of the Supreme Court dated July 13, 2011, which granted the plaintiff's motion to amend the complaint, as none of the motion papers which resulted in that order are contained therein (see Matter of Lynch, 98 A.D.3d 510, 511, 949 N.Y.S.2d 454 ; Block 6222 Constr. Corp. v. Sobhani, 84 A.D.3d 1292, 923 N.Y.S.2d 900 ; Wen Zong Yu v. Hua Fan, 65 A.D.3d 1335, 885 N.Y.S.2d 605 ). In addition, this Court cannot review an order dated November 3, 2011, which denied the motion of that defendant for leave to reargue (see Bank of N.Y. v. Segui, 120 A.D.3d 1369, 1370, 993 N.Y.S.2d 330 ; Bradley v. Earl, 112 A.D.2d 262, 263, 491 N.Y.S.2d 709 ).
“ ‘Upon review of a determination made after a nonjury trial, this Court's authority is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing and hearing the witnesses' ” (Todd Rotwein, D.P.M., P.C. v. Nader Enters., LLC, 125 A.D.3d 844, 844, 1 N.Y.S.3d 826, quoting 34–35th Corp. v. 1–10 Indus. Assoc., LLC, 103 A.D.3d 709, 710, 959 N.Y.S.2d 519 ; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 ; Khan v. Kaieteur Constr., Inc., 120 A.D.3d 770, 770, 991 N.Y.S.2d 349 ). Where, as here, the court's findings of fact “ ‘rest in large measure on considerations relating to the credibility of witnesses,’ deference is owed to the trial court's credibility determinations” (Tornheim v. Blue & White Food Prods. Corp., 88 A.D.3d 867, 868, 931 N.Y.S.2d 340, quoting Anderson v. Mastrangelo, 18 A.D.3d 677, 677, 796 N.Y.S.2d 118 ). Contrary to the contention of the LLC, the facts warranted the Supreme Court's determination that, at the time that the plaintiff and the LLC entered into a certain lease dated January 1, 2007, there were no tenants other than the LCC in possession of the subject property, and we find no reason to disturb it.
The Supreme Court properly awarded the plaintiff a reasonable attorney's fee pursuant to the terms of the two leases breached by the LLC (see Miller Realty Assoc. v. Amendola, 51 A.D.3d 987, 989–990, 859 N.Y.S.2d 258 ). Contrary to the LLC's contention, under the circumstances of this case, we do not perceive the failure of the plaintiff's attorney to initially disclose the existence of a retainer agreement as a reason to deny the award (see Lefkowitz v. Van Ess, 166 A.D.2d 556, 560 N.Y.S.2d 838 ).The contention of the LLC with regard to its counterclaim alleging wrongful eviction is improperly raised for the first time on appeal. The LLC's remaining contentions are without merit.