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Aspen Tree Service, Inc., Respondent-Appellant, -And- Ralph Serrano, Plaintiff v. Public Storage

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


April 15, 2013

ASPEN TREE SERVICE, INC., RESPONDENT-APPELLANT, -AND- RALPH SERRANO, PLAINTIFF, --
v.
PUBLIC STORAGE, INC., APPELLANT-RESPONDENT.

Appeal, and cross appeal on the ground of inadequacy, from a judgment of the District Court of Suffolk County, Fourth District (Stephen L. Ukeiley, J.), entered June 10, 2011.

Aspen Tree Serv., Inc. v Public Stor., Inc.

Decided on April 15, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: NICOLAI, P.J., IANNACCI and LaSALLE, JJ

The judgment awarded plaintiff Aspen Tree Service, Inc. the principal sum of $3,536.94.

ORDERED that the judgment is affirmed, without costs.

Plaintiffs commenced this commercial claims action to recover damages in the sum of $5,000, resulting from the alleged theft of plaintiffs' tree cutting equipment from plaintiffs' truck while the truck was parked in a parking spot at defendant's facility, which spot plaintiffs had leased from defendant. After a non-jury trial, the District Court awarded plaintiff Aspen Tree Service, Inc. (Aspen) the principal sum of $3,536.94, finding, among other things, that defendant's conduct had been grossly negligent. Defendant appeals, and plaintiff Aspen cross-appeals on the ground of inadequacy.

The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with greater force to judgments rendered in the Commercial Claims Part of the court (see Williams v Roper, 269 AD2d 125, 126 [2000]).

In rejecting defendant's defense based on a lease provision which purported to exempt defendant from liability for its own acts of negligence, the District Court properly found that the lease provision was void and unenforceable pursuant to General Obligations Law § 5-321 (see Ben Lee Distribs., Inc. v Halstead Harrison Partnership, 72 AD3d 715, 716 [2010]; Rego v 55 Leone Lane, LLC, 56 AD3d 748, 749 [2008]; Breakaway Farm, Ltd. v Ward, 15 AD3d 517, 518 [2005]). Therefore, defendant can be held liable if its conduct constituted ordinary negligence and, based upon a review of the record, we find that defendant is so liable. Thus, we need not reach the issue of whether defendant was grossly negligent.

In addition, we find no basis to increase the court's award in favor of plaintiff Aspen (see Dubiner's Bootery, Inc. v General Outdoor Adv. Co., 10 AD2d 923 [1960]; Rodriguez v Johnson, 24 Misc 3d 132[A], 2009 NY Slip Op 51379[U] [App Term, 9th & 10th Jud Dists 2009]).

Accordingly, we conclude that the judgment provided both parties with substantial justice according to the rules and principles of substantive law (UDCA 1804-A, 1807-A; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125), and the judgment is affirmed.

Nicolai, P.J., Iannacci and LaSalle, JJ., concur. Decision Date: April 15, 2013

20130415

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