Kamalian v. Cmty. Ob/Gyn Assocs., PLLC

• Decision Date: 21 October 2015
• Docket Number: 2014-01912, Index No. 3067/10.
• Citation: 132 A.D.3d 814,17 N.Y.S.3d 879 (Mem),2015 N.Y. Slip Op. 07623
• Parties: Michael KAMALIAN, appellant, v. COMMUNITY OB/GYN ASSOCIATES, PLLC, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

132 A.D.3d 814

17 N.Y.S.3d 879 (Mem)

2015 N.Y. Slip Op. 07623

Michael KAMALIAN, appellant

v.COMMUNITY OB/GYN ASSOCIATES, PLLC, etc., et al., respondents.

2014-01912, Index No. 3067/10.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 21, 2015.

Fabricant Lipman & Frishberg, PLLC, Goshen, N.Y. (Neal D. Frishberg of counsel), for appellant.

Daniels, Porco and Lusardi, LLP, Carmel, N.Y. (Robert C. Lusardi of counsel), for respondents.

Opinion

In an action, inter alia, to recover damages for breach of a lease, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Orange County (Marx, J.), entered November 19, 2013, as, upon a decision of the same court dated August 19, 2013, made after a nonjury trial, is in favor of the defendants and against him dismissing the first cause of action, and in favor of the defendant Community OB/GYN Associates, PLLC, and against him on its counterclaim in the principal sum of $1,188.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

“In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and we may render a judgment we find warranted by the facts, bearing in mind that in a close case, the trial court had the advantage of seeing and hearing the witnesses” (Zutrau v. ICE Sys., Inc., 128 A.D.3d 1058, 1060, 10 N.Y.S.3d 539 [internal quotation marks omitted]; 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 ). Where 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” (Neiss v. Fried, 127 A.D.3d 1044, 1046, 9 N.Y.S.3d 76 [internal quotation marks omitted]; see Gomez v. Eleni, LLC, 122 A.D.3d 797, 798, 997 N.Y.S.2d 458 ). Here, the Supreme Court's determination that the plaintiff did not accept the modified lease or deliver an executed copy of the modified lease to the defendants, rendering the modified lease ineffective (see 219 Broadway Corp. v. Alexander's, Inc., 46 N.Y.2d 506, 511–512, 414 N.Y.S.2d 889, 387 N.E.2d 1205 ), was warranted by the facts. Accordingly, the Supreme Court properly dismissed the first cause of action, which sought to recover damages for breach of the lease.

The plaintiff's remaining contention is without merit.

RIVERA, J.P., BALKIN, LEVENTHAL and DICKERSON, JJ., concur...