Sam & Mary Housing Corp. v. Jo/Sal Market Corp.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before O'CONNOR; WEINSTEIN, J., concurs in part and dissents in part, with the following memorandum, in which O'CONNOR
• Citation: 474 N.Y.S.2d 786,100 A.D.2d 901
• Decision Date: 16 April 1984
• Parties: SAM & MARY HOUSING CORP., Appellant-Respondent, v. JO/SAL MARKET CORP., Respondent-Appellant.

Page 786

474 N.Y.S.2d 786 100 A.D.2d 901 SAM & MARY HOUSING CORP., Appellant-Respondent,
v.
JO/SAL MARKET CORP., Respondent-Appellant. Supreme Court, Appellate Division,
Second Department. April 16, 1984.

Page 787

Sheldon Ostro, New York City, for appellant-respondent.

Pearlman, Apat, Kupillas & Futterman, Kew Gardens (Stephen Pearlman, Kew Gardens, of counsel), for respondent-appellant.

Before O'CONNOR, J.P., and WEINSTEIN, NIEHOFF, BOYERS and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to declare a lease null and void, plaintiff appeals from a judgment of the Supreme Court, 121 Misc.2d 434, 468 N.Y.S.2d 294, Queens County, dated August 25, 1983, which, after a nonjury trial, dismissed its complaint and awarded damages to the defendant on its counterclaim for wrongful eviction in the principal sum of $271,522.78. The defendant cross-appeals from so much of the same judgment as denied it any recovery for lost profits and which permitted interest only from the date of the judgment rather than from the date of the wrongful act.

Judgment modified, on the law and the facts, by reducing the principal amount thereof to the sum of $73,343, together with interest from August 25, 1983. As so modified, judgment affirmed, without costs or disbursements, and matter remitted to the Supreme Court, Queens County, for entry of an appropriate amended judgment.

The evidence of wrongful eviction was overwhelming. With respect to damages, the trial court properly allowed defendant the cost of the fixtures ($2,000) and the stock ($9,500), and correctly determined the value of the lease from the date of the wrongful eviction to the date of the

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trial ($25,667), based upon the difference between the rent reserved and the fair rental value, and by the same formula the value thereof for the unexpired term of the lease, reduced to its present value ($36,176) (see Randall-Smith v. 43rd Street Estates Corp., 17 N.Y.2d 99, 268 N.Y.S.2d 306, 215 N.E.2d 494). However, it was error for the trial court to award defendant $14,000, the alleged purchase price of its business, and attorney's fees of $2,500 in connection therewith. The record lacks evidence sufficient to support the award for those items. It was also error to award defendant treble damages. Since no force or fear of personal violence was involved, treble damages could not be awarded pursuant to RPAPL 853 as it read at the time of the wrongful eviction in April, 1980. Nor should the amendment to RPAPL 853, effective July 7, 1981 (L.1981, ch. 467, § 2), have been given retroactive effect. Said amendment created a new liability by allowing treble damages for unlawful [100 A.D.2d 902] eviction not involving force or violence.

We find no error in the Trial Judge taking judicial notice of facts within her personal knowledge which were derived from an unrelated case that came before her in February, 1983. Upon becoming aware that she possessed such information, affecting the credibility of plaintiff's key witness, which was not then part of the record, the Trial Judge, exercising sound judgment, advised both attorneys of the fact, and gave plaintiff the opportunity to clarify any factual inconsistencies concerning the circumstances surrounding the rerenting of the store following defendant's ouster. Having chosen not to avail itself of the opportunity, or to move the court to recuse itself, plaintiff cannot now be heard to complain.

Defendant's contention as to the failure of the court to award interest from April 23, 1980, the date defendant was locked out of possession, is without merit. The trial court has fixed a reasonable intermediate date--the date of judgment-pursuant to CPLR 5001 (subd. [b] ).

The court has considered plaintiff's and defendant's other contentions and has found them to be without merit.

NIEHOFF, BOYERS and LAWRENCE, JJ., concur.

WEINSTEIN, J., concurs in part and dissents in part, with the following memorandum, in which O'CONNOR, J.P., concurs.

While I concur with the majority to the extent that it concedes that the damages awarded by the trial court were patently excessive, I cannot agree that the trial was otherwise without error. In my view, the trial court erroneously took judicial...