& Kalicharan, P.C., New York, NY (William A. Garcia of
counsel), for appellants.
Seiden, Mount Vernon, NY, for respondent.
LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, HECTOR D. LASALLE,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
from a judgment of the Supreme Court, Westchester County
(James W. Hubert, J.), dated February 21, 2014. The judgment,
upon a decision of that court dated December 13, 2013, made
after a nonjury trial, is in favor of the plaintiff and
against the defendants in the total sum of $1, 183, 698.38.
that the judgment is modified, on the law, by deleting the
provision thereof which is in favor of the plaintiff and
against the defendants Arcedo Valdez and Luchy Fernandez, and
substituting therefor a provision dismissing the complaint
insofar as asserted against those defendants; as so modified,
the judgment is affirmed, without costs or disbursements.
April 2008, the plaintiff, as landlord, and the defendant
Jalyng Food Corp. (hereinafter Jalyng), as tenant, entered
into a 15-year commercial lease agreement for store premises
located in Mount Vernon (hereinafter the lease). The lease
contained a provision pursuant to which the defendants Arcedo
Valdez and Luchy Fernandez, the principals of Jalyng,
allegedly personally guaranteed Jalyng's performance
under the lease. Additionally, pursuant to the lease, Jalyng
purchased existing fixtures and equipment in the premises for
$150, 000 from the plaintiff.
Jalyng failed to pay rent, the plaintiff commenced a summary
proceeding, and Jalyng was evicted from the premises pursuant
to a judgment rendered October 26, 2009. Thereafter, the
plaintiff commenced this action, inter alia, to recover
damages against Jalyng for breach of the lease, and against
Valdez and Fernandez on their alleged personal guarantees of
Jalyng's lease obligations. In their verified answer, the
defendants asserted, inter alia, a counterclaim against the
plaintiff to recover damages for the plaintiff's alleged
conversion of the fixtures and equipment. In a decision after
a nonjury trial, the Supreme Court, inter alia, determined
that the plaintiff was entitled to posttermination damages
for Jalyng's breach of the lease, that Valdez and
Fernandez had personally guaranteed Jalyng's lease
obligations, and that the defendants failed to establish that
the plaintiff was liable for conversion of the equipment and
fixtures. A judgment was entered upon the decision in favor
of the plaintiff and against the defendants in the total sum
of $1, 183, 698.38. The defendants appeal.
reviewing a determination made after a nonjury trial, this
Court's power to review the evidence is as broad as that
of the trial court, and this Court may render a judgment it
finds warranted by the facts, bearing in mind that due regard
must be given to the trial court, which was in a position to
assess the evidence and the credibility of the witnesses
(see Northern Westchester Professional Park Assoc. v Town
of Bedford, 60 N.Y.2d 492, 499; DeAngelis v
DeAngelis, 104 A.D.3d 901, 902; Parr v Ronkonkoma
Realty Venture I, LLC, 65 A.D.3d 1199, 1201).
to the defendants' contentions, the Supreme Court's
determination to impose posttermination liability upon Jalyng
for its breach of the lease was warranted by the facts.
"Although an eviction terminates the landlord-tenant
relationship, the parties to a lease are not foreclosed from
contracting as they please" (Holy Props. v Cole
Prods., 87 N.Y.2d 130, 134). "Where a lease
provides that a landlord is under no duty to mitigate damages
after its reentry by virtue of its successful prosecution of
a summary proceeding, and that the tenant remains liable for
damages, [the tenant] remain[s] liable for all monetary
obligations arising under the lease'" (H.L.
Realty, LLC v Edwards, 131 A.D.3d 573, 575, quoting
Holy Props. v Cole Prods., 87 N.Y.2d at 134). Here,
the lease did not obligate the plaintiff to mitigate damages
after a dispossession by summary proceeding and specifically
provided that Jalyng would remain liable for rent after
eviction. In addition, the lease clearly stated that if
Jalyng breached the lease, the plaintiff was not precluded
from any other remedy in law or equity. Consequently, the
lease did not limit the plaintiff to recovery of only
pretermination rent in the event that it commenced a summary
eviction proceeding to regain possession of the premises
(see H.L. Realty, LLC v Edwards, 131 A.D.3d at 575;
Patchogue Assoc. v Sears, Roebuck & Co., 108
A.D.3d 659, 660-661; Gallery at Fulton St., LLC v Wendnew
LLC, 30 A.D.3d 221, 222).
Supreme Court's determination that the defendants failed
to establish that the plaintiff was liable for conversion of
the equipment and fixtures was also warranted by the facts.
The defendants did not adduce evidence that they had a
superior right of possession (see generally Eight In One
Pet Prods. v Janco Press, Inc., 37 A.D.3d 402, 402;
Castaldi v 39 Winfield Assoc., 30 A.D.3d 458, 458;
Batsidis v Batsidis, 9 A.D.3d 342, 343), or that
they demanded the equipment and fixtures from the plaintiff
prior to the commencement of this action (see Cash v
Titan Fin. Servs., Inc., 58 A.D.3d 785, 789;
Tache-Haddad Enters. v Melohn, 224 A.D.2d 213, 213;
Apex Ribbon Co. v Knitwear Supplies, 22 A.D.2d 766,
767). Consequently, the court's finding that the
defendants were not entitled to damages on their conversion
counterclaim against the plaintiff will not be disturbed.
the Supreme Court should have dismissed the complaint insofar
as asserted against Valdez and Fernandez. " A corporate
officer who executes a contract acting as an agent for a
disclosed principal is not liable for a breach of the
contract unless it clearly appears that he or she intended to
bind himself or herself personally'" (GMS
Batching, Inc. v TADCO Constr. Corp., 120 A.D.3d 549,
552, quoting Stamina Prods., Inc. v Zintec USA,
Inc., 90 A.D.3d 1021, 1022; Yellow Book Sales &
Distrib. Co., Inc. v Mantini, 85 A.D.3d 1019, 1021).
"There must be clear and explicit evidence of the
agent's intention to substitute or superadd his personal
liability for, or to, that of his principal" (Ho
Sports, Inc. v Meridian Sports, Inc., 92 A.D.3d 915, 917
[internal quotation marks omitted]). The personal guarantee,
which was incorporated into the lease as its last provision,
was immediately followed by the signatures of Valdez and
Fernandez, identified as "Tenant." As the
individual defendants only signed the lease as
"Tenant" on behalf of their disclosed principal,
Jalyng, there was not clear and explicit evidence that they
intended to bind themselves personally (see Salzman Sign
Co. v Beck, 10 N.Y.2d 63, 67; GMS Batching, Inc. v
TADCO Constr. Corp., 120 A.D.3d at 552; Star Video
Entertainment v J & I Video Distrib., 268 A.D.2d
423, 423-424). Consequently, the court's determination to
impose personal liability upon Valdez and Fernandez was not
supported by the record.
defendants' remaining contentions are without merit.
AUSTIN, J.P., MILLER, LASALLE and ...