Long Island Airports Limousine Service Corp. v. Northwest Airlines

• Decision Date: 17 November 1986
• Citation: 124 A.D.2d 711,508 N.Y.S.2d 223
• Parties: LONG ISLAND AIRPORTS LIMOUSINE SERVICE CORP., Appellant, v. NORTHWEST AIRLINES, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 223

508 N.Y.S.2d 223

124 A.D.2d 711

LONG ISLAND AIRPORTS LIMOUSINE SERVICE CORP., Appellant, v. NORTHWEST AIRLINES, Respondent.

Supreme Court, Appellate Division Second Department.

Nov. 17, 1986.

William M. Stewart, New York City, for appellant.

Reavis & McGrath, New York City (John A. Lowe, Kimberlee S. Bogen and Neil G. Sparber, of counsel), for respondent.

Before LAZER, J.P., and BROWN, NIEHOFF and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of a lease and wrongful eviction, the plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Queens County (Collins, J.), dated April 16, 1984, as dismissed its cause of action to recover damages for wrongful eviction at the close of the plaintiff's case.

ORDERED that the judgment is reversed insofar as appealed from, on the law, without costs or disbursements, and the plaintiff is awarded judgment on its cause of action to recover damages for wrongful eviction in the amount of one dollar.

The plaintiff leased 45 square feet of space in the defendant's Kennedy Airport terminal in order to provide a counter for its representative and a telephone which customers could use to contact it and arrange their transportation. In July of 1979, after a dispute over the plaintiff's failure to pay rent in a timely fashion, the plaintiff's airport supervisor discovered that its telephone had been disconnected and its sign removed. The defendant's terminal manager admitted to the plaintiff's supervisor and president that he was responsible for this eviction, but there is no indication in the record as to the manner in which it was accomplished.

The plaintiff sued on three causes of action. In the first, sounding in wrongful eviction, it alleged that the defendant had acted wantonly, willfully and maliciously, and sought both compensatory and punitive damages. The second cause of action claimed compensation for breach of an implied covenant of quiet enjoyment, and the third sought an injunction to prevent the defendant from reletting the premises. The first and third causes of action were dismissed at the conclusion of the plaintiff's case; the second was dismissed at the end of the trial. The only issue raised on this appeal concerns the propriety of the dismissal of the first cause of action.

Contrary to the trial court's conclusion, the plaintiff did make out a prima facie case of wrongful eviction. Although the rental payments were not made in a timely fashion, the plaintiff cured its default within 10 days of written notification by the defendant, as the lease permitted. Thus, the plaintiff never breached the lease and there was no basis for the eviction. The only question is damages.

The measure of compensatory damages for wrongful eviction is the value of the unexpired term of the lease over and above the rent the lessee must pay under its terms (see, Mack v. Patchin, 42 N.Y. 167; Mid-Hudson Recreational Centers v. Fallon, 96 A.D.2d 855, 465 N.Y.S.2d 768; Kepo, Inc. v. Romano, 85 A.D.2d 621, 445 N.Y.S.2d 23), together with any actual damages flowing directly from the wrongful eviction (see, Eten v. Luyster, 60 N.Y. 252). The plaintiff's only evidence on the issue of damages was its president's testimony as to profits allegedly lost as a result of the defendant's acts. Although loss of profits may be an element of recovery in a wrongful eviction action (see, Snow v. Pulitzer, 142 N.Y. 263; Smith v. Feigin, 276 App.Div. 531, 96 N.Y.S.2d 123; O'Toole v. Crane & Clark, 245 App.Div. 824, 281 N.Y.S. 1, affd. 270 N.Y. 559, 200 N.E. 317; Peerless Candy Co., Inc. v. Halbreich, 125 Misc. 889, 211 N.Y.S. 676), the loss must be ascertainable with a reasonable degree of certainty and may not be based on conjecture (Bromberger v. Empire Flashlight Co., Inc., 138 Misc. 754, 246 N.Y.S. 67; Wolff v. Hyass, 11 Misc. 561, 32 N.Y.S. 798, affd. 159 N.Y. 551, 54 N.E. 1095; see also, Schiffman v. Deluxe Caterers of Shelter Rock, 100 A.D.2d 846, 474 N.Y.S.2d 87; R & I Electronics v. Neuman, 66 A.D.2d 836, 411 N.Y.S.2d 401).

The plaintiff's evidence did not meet this standard. The plaintiff had no record of the number of passengers transported to and from the defendant's terminal before the eviction. To determine the profits lost as a result of the eviction, the plaintiff's president simply relied on the fact that the plaintiff had such a telephone in every terminal at Kennedy Airport and calculated an...