NEW YORK SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
April 27, 2012
LISA CHU, APPELLANT,
231 NORMAN AVENUE PROPERTY DEVELOPMENT, LLC, RESPONDENT.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered July 7, 2010.
Chu v 231 Norman Ave. Prop. Dev., LLC
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on April 27, 2012
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
The judgment, after a non-jury trial, dismissed the complaint. The appeal from the judgment brings up for review an order of the same court (Peter Paul Sweeney, J.) entered October 16, 2009 denying plaintiff's motion to vacate the decision after trial.
ORDERED that the judgment is reversed, without costs, and judgment is directed to be entered in favor of plaintiff in the principal sum of $180.
Plaintiff commenced this action to recover the sum of $19,350, alleging that defendant had breached a contract in which it had agreed to procure for plaintiff a commercial tenant who would be willing to pay rent of $2,150 per month or, if it failed to procure such a tenant, to pay up to $2,150 per month for one year to make up the difference. At a non-jury trial, both parties proffered testimony regarding a negotiation with a prospective tenant who had been proposed by defendant two months after the contract had been executed. Plaintiff ultimately never executed a lease with the proposed tenant, and defendant, who had paid the agreed-upon rent of $2,150 for the first two months of the contract, did not make any further rent payments to plaintiff. The Civil Court found, based on the negotiations, that defendant had not breached its contract with plaintiff.
Implicit in the Civil Court's holding is a finding that defendant procured a tenant. We find no basis in the record to disturb that implicit determination (see Claridge Gardens v Menotti, 160 AD2d 544 ). However, it is undisputed that the tenant procured by defendant was only ready, willing and able to pay a monthly rent of $1,800. Accordingly, even if the tenant had entered into a lease with plaintiff, a difference of $350 a month chargeable to defendant would have remained. Defendant's witness testified that defendant had, pursuant to plaintiff's request, paid plaintiff's condominium maintenance fees of $332, leaving a balance of $18 per month chargeable to defendant, as conceded by defendant at trial. Accordingly, plaintiff is entitled to a judgment of $180, reflecting $18 per month for the last 10 months of the contract.
We note that plaintiff's motion to vacate the decision after trial on the ground that she had not been represented at trial was properly denied, as plaintiff had charted her own course in choosing to proceed pro se (see Duffen v State of New York, 245 AD2d 653 ).
Accordingly, the judgment dismissing the complaint is reversed and judgment is directed to be entered in plaintiff's favor in the principal sum of $180.
Pesce, P.J., and Rios, J., concur.
Weston, J., dissents in a separate memorandum.
Weston, J., dissents and votes to affirm the judgment in the following memorandum:
In this action for breach of contract, I disagree with the majority's decision to award plaintiff damages where plaintiff failed to prove a breach of contract. Indeed, a review of the record demonstrates that any failure to obtain a tenant was the result of plaintiff's own doing.
As the Civil Court expressly held, defendant, in good faith, procured an acceptable prospective tenant for plaintiff, providing plaintiff with ample financial and personal information about the prospective tenant. Despite these efforts and defendant's repeated attempts to complete the transaction with plaintiff, plaintiff failed to respond, resulting in the tenant leasing space elsewhere. To the extent the majority concludes that plaintiff is somehow entitled to compensation, nothing in the contract requires such compensation where defendant clearly made a good faith attempt to locate a tenant for plaintiff and plaintiff refused to follow through with the transaction. Indeed, damages cannot be awarded absent a finding of a breach of contract (see City of New York v College Point Sports Assn., Inc., 61 AD3d 33 ), and the majority's decision to award them here is simply untenable. Any offer by defendant to pay the difference between plaintiff's common charges and the amount chargeable to defendant had the tenant been accepted is outside the terms of the contract. Consequently, defendant had no obligation to pay this amount and should not be penalized for its generosity.
Accordingly, I vote to affirm the judgment.
Decision Date: April 27, 2012
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