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Madison-68 Corp. v. Malpass

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


August 11, 2009

MADISON-68 CORP., PLAINTIFF-APPELLANT,
v.
DAVID MALPASS, ET AL., DEFENDANTS-RESPONDENTS.

Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered April 11, 2008, after a non-jury trial, awarding plaintiff the sum of $15,500 with interest from July 1, 2004, costs and disbursements, and which brings up for review an order of the same court and J.H.O., entered March 17, 2008, which, inter alia, denied plaintiff's motion to set aside the trial and restore the case to the trail calendar, and granted defendants' counterclaim for attorneys' fees, unanimously modified, on the law, to the extent that the award of attorneys' fees to defendants is vacated, and otherwise affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Andrias, Nardelli, DeGrasse, Abdus-Salaam, JJ.

112820/04

Plaintiff's objection, made under the best evidence rule, to the admission of the lease rider was properly overruled because it had offered into evidence a copy of the same document. The J.H.O. at times cut off questioning, but did so in an evenhanded manner to expedite the trial, never amounting to prejudicial error (see Lewis v Port Auth. of N.Y. & N.J., 8 AD3d 205, 206 [2004]). Nor was the judgment against the weight of the evidence, since the case essentially turned on the parties' competing oral testimony. The issue of the prevailing party notwithstanding, it was error for the J.H.O. to determine that defendants were entitled to an award of attorneys' fees. In Oxford Towers Co., LLC v Wagner (58 AD3d 422 [2009]), this Court held that an identical lease provision was not covered by Real Property Law § 234.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090811

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