North Main Street Bagel Corporation v. Duncan

• Decision Date: 27 February 2007
• Docket Number: 2005-09695.
• Citation: 2007 NY Slip Op 01700,37 A.D.3d 785,831 N.Y.S.2d 239
• Parties: NORTH MAIN STREET BAGEL CORPORATION, Appellant, v. ROBERT J. DUNCAN et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

37 A.D.3d 785

831 N.Y.S.2d 239

2007 NY Slip Op 01700

NORTH MAIN STREET BAGEL CORPORATION, Appellant, v. ROBERT J. DUNCAN et al., Respondents, et al., Defendants.

2005-09695.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided February 27, 2007.

In an action, inter alia, to recover damages for trespass, wrongful eviction, and tortious interference with prospective contractual relations, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Molia, J.), dated July 21, 2005, which, after a nonjury trial, and upon a decision and order of this Court, dated April 19, 2004, finding, inter alia, that the defendants Robert J. Duncan and Shirley T. Duncan wrongfully evicted the plaintiff from a leasehold (see North Main St. Bagel Corp. v Duncan, 6 AD3d 590 [2004]), awarded nominal damages of one dollar to the plaintiff.

Ordered that the judgment is modified, on the law and the facts, by deleting the provision thereof awarding the plaintiff nominal damages of one dollar, and substituting therefor a provision awarding the plaintiff the sum of $30,000, plus prejudgment interest from October 31, 1997; as so modified, the judgment is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of an appropriate amended judgment.

On October 31, 1997 the defendants Robert J. Duncan and Shirley T. Duncan (hereinafter together the landlord) committed a trespass and wrongfully evicted the plaintiff tenant from commercial premises at which the plaintiff had been operating a bagel shop (see North Main St. Bagel Corp. v Duncan, 6 AD3d 590 [2004]). Upon our determination that the plaintiff established at trial that it was entitled to judgment against the landlord as to liability on those causes of action, we directed the Supreme Court, upon remittal, to make a determination as to damages, based on the evidence that had already been adduced at the trial. The Supreme Court awarded the plaintiff nominal damages of one dollar. We modify, and award the plaintiff $30,000, plus prejudgment interest from October 31, 1997, the date of the wrongful eviction.

"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 ... together with any actual damages flowing directly from the wrongful eviction" (Long Is. Airports Limousine Serv. Corp. v Northwest Airlines, 124 AD2d 711, 712 [1986]; see also Randall-Smith v 43rd St. Estates Corp., 17 NY2d 99, 102 [1966]; Mid Hudson Recreational Ctrs. v Fallon, 96 AD2d 855 [1983]), which include lost profits ascertainable with a reasonable degree of certainty (Long Is. Airports Limousine Serv. Corp. v Northwest Airlines, supra at 712), and loss of personal property (see Rocke v 1041 Bushwick Ave. Assoc., 169 AD2d 525 [1991]; Schwartz v Certified Mgt. Corp., 148 AD2d 387, 388 [1989]; Sam & Mary Hous. Corp. v Jo/Sal Mkt. Corp., 100 AD2d 901 [1984], affd 64 NY2d 1107 [1985]).

Because the value of the unexpired period of the lease between the plaintiff and the landlord, as evinced by the replacement lease given by the landlord to the defendants James Koehne and Matt Worrell, was equal to the rent the plaintiff was otherwise required to pay under the lease, the plaintiff suffered no damages by this measure. Moreover, the trial record supports the Supreme Court's determination that the wrongful eviction did not directly cause the plaintiff's loss of an opportunity to sell its business, including the leasehold, to Koehne and Worrell for the sum of $75,000 (see Matter of Marina Bay Club v Cannizzaro, 105 AD2d 1114 [1984]). Rather, a reasonable inference may be drawn that, prior to the wrongful eviction, Koehne and Worrell independently determined to decline the plaintiff's offer to enter into a purchase and sale agreement concerning the business and the leasehold. Accordingly, the Supreme Court's determination that the plaintiff was not entitled to lost profits in the face amount of the proposed purchase and sale agreement is supported by the record.

The Supreme Court erred, however, "in denying plaintiff the value of certain items of personal property, lost during the course of the eviction, because of lack of documentation showing the exact price paid" (Schwartz v Certified Mgt. Corp., supra at 388). The testimony of the plaintiff's principal, who was also a certified public accountant, as to the articles of equipment purchased and their prices and the documentary evidence as to their resale value three years after their purchase, was unrebutted by the landlord, "and no proof was adduced to show that the articles were not in fact purchased or that their value had been inflated" (id. at 388). The plaintiff's principal, who purchased the equipment on behalf of the plaintiff, testified that he was familiar with the cost of these items as...