Kissm Realty Corp. v. Brooklyn Cmty. Mgmt., LLC

• Decision Date: 10 June 2015
• Docket Number: 2013-03999, 2013-09441
• Citation: 13 N.Y.S.3d 437,2015 N.Y. Slip Op. 04813,129 A.D.3d 781
• Parties: KISSM REALTY CORP., respondent, v. BROOKLYN COMMUNITY MANAGEMENT, LLC, appellant, et al., defendant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 781

13 N.Y.S.3d 437

2015 N.Y. Slip Op. 04813

KISSM REALTY CORP., respondent

v.BROOKLYN COMMUNITY MANAGEMENT, LLC, appellant, et al., defendant.

2013-03999, 2013-09441

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

June 10, 2015.

Kinzler Law Group, PLLC, New York, N.Y. (Ben Kinzler of counsel), for appellant.

Woods & Lonergan LLP, New York, N.Y. (Lawrence R. Lonergan of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.

Opinion

In an action to recover damages for breach of contract, the defendant Brooklyn Community Management, LLC, appeals from (1) a judgment of the Supreme Court, Kings County (Allman, Ct.Atty.Ref.), dated March 13, 2013, which, after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $111,796.15, and (2) a money judgment of the same court dated September 3, 2013, which is in favor of the plaintiff and against it in the principal sum of $100,353.00.

ORDERED that the judgment is affirmed; and it is further,

ORDERED that the money judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The record is inadequate to enable this Court to review the issues raised by the defendant Brooklyn Community Management, LLC (hereinafter the LLC), with respect to an order of the Supreme Court dated July 13, 2011, which granted the plaintiff's motion to amend the complaint, as none of the motion papers which resulted in that order are contained therein (see Matter of Lynch, 98 A.D.3d 510, 511, 949 N.Y.S.2d 454 ; Block 6222 Constr. Corp. v. Sobhani, 84 A.D.3d 1292, 923 N.Y.S.2d 900 ; Wen Zong Yu v. Hua Fan, 65 A.D.3d 1335, 885 N.Y.S.2d 605 ). In addition, this Court cannot review an order dated November 3, 2011, which denied the motion of that defendant for leave to reargue (see Bank of N.Y. v. Segui, 120 A.D.3d 1369, 1370, 993 N.Y.S.2d 330 ; Bradley v. Earl, 112 A.D.2d 262, 263, 491 N.Y.S.2d 709 ).

“ ‘Upon review of a determination made after a nonjury trial, this Court's authority is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing and hearing the witnesses' ” (Todd Rotwein, D.P.M., P.C. v. Nader Enters., LLC, 125 A.D.3d 844, 844, 1 N.Y.S.3d 826, quoting 34–35th Corp. v. 1–10 Indus. Assoc., LLC, 103 A.D.3d 709, 710, 959 N.Y.S.2d 519 ; 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 ; Khan v. Kaieteur Constr., Inc., 120 A.D.3d 770, 770, 991 N.Y.S.2d 349 ). Where, as here, 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” (Tornheim v. Blue & White Food Prods. Corp., 88 A.D.3d 867, 868, 931 N.Y.S.2d 340, quoting Anderson v. Mastrangelo, 18 A.D.3d 677, 677, 796 N.Y.S.2d 118 ). Contrary to the contention of the LLC, the...