Seabring, LLC v. Elegance Rest. Furniture Corp.

• Citation: 135 N.Y.S.3d 161,188 A.D.3d 744
• Decision Date: 04 November 2020
• Docket Number: Index No. 16445/13,2017–11529
• Parties: SEABRING, LLC, respondent, v. ELEGANCE RESTAURANT FURNITURE CORP., et al., appellants.
• Court: New York Supreme Court Appellate Division

188 A.D.3d 744

135 N.Y.S.3d 161

SEABRING, LLC, respondent,

v.ELEGANCE RESTAURANT FURNITURE CORP., et al., appellants.

2017–11529

Index No. 16445/13

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

Argued - September 8, 2020

November 4, 2020

Vincent S. Wong, New York, N.Y. (Michael Brand of counsel), for appellants.

Meyers Tersigni Feldman & Gray LLP, New York, N.Y. (Anthony L. Tersigni of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, ROBERT J. MILLER, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of a lease, the defendants appeal from a judgment of the Supreme Court, Kings County (Larry D. Martin, J.), dated September 5, 2017. The judgment, insofar as appealed from, upon a decision of the same court also dated September 5, 2017, made after a nonjury trial, is in favor of the plaintiff and against the defendant Elegance Restaurant Furniture Corp. in the principal sum of $47,962.34, together with fees, costs, and disbursements in the sum of $11,031.50, and is in favor of the plaintiff and against the defendants Mei Nian Yuan, also known as May Yuan, and Chi Lun Tse in the principal sum of $158,511.63, together with fees, costs, and disbursements in the sum of $11,031.50.

ORDERED that the judgment is modified, on the facts, (1) by deleting the second and fourth decretal paragraphs thereof, and (2) by adding to the first decretal paragraph thereof, after the words "ADJUDGED that the Plaintiff, Seabring LLC recover of defendant Elegance Furniture Corp. with offices at 228 40th Street, Brooklyn, New York 11232," the words "and the defendant Mei Nian Yuan, a/k/a May Yuan, residing at 2368 64th Street, Brooklyn, New York 11204"; as so modified, the judgment is affirmed insofar as appealed from, with costs to the defendants.

In December 2007, the defendant Elegance Restaurant Furniture Corp. (hereinafter Elegance) executed a five-year triple-net lease with the plaintiff landlord to rent certain premises located in Brooklyn. In connection with the lease, the defendant Mei Nian Yuan, also known as May Yuan (hereinafter Yuan), executed a limited personal guaranty in favor of the plaintiff, by which Yuan guaranteed the payment of "all rent and additional rents" accrued under the lease until, among other things, Elegance vacated and surrendered the leased premises. In November 2011, Elegance entered into an agreement with the plaintiff, whereby Elegance agreed to make certain outstanding payments due under the lease. That agreement was executed by Yuan as guarantor and by the defendant Chi Lun Tse (hereinafter Tse) "as an additional personal Guarantor" of the lease.

In September 2013, the plaintiff commenced this action to recover damages for breach of the lease and to recover on personal guaranties. The plaintiff alleged that Elegance failed to pay rent and other expenses due under the lease starting in November 2012, and that following the expiration of the lease in December 2012, Elegance continued to occupy the leased premises until April 15, 2013. The plaintiff sought to recover, among other things, unpaid rent and other expenses for November and December 2012, monthly holdover rent for January 2013 to April 2013, and additional rent from April 2013 until the commencement of a new tenancy for the premises on August 1, 2013.

The Supreme Court referred the matter to a Court Attorney Referee (hereinafter the Referee) to hear and determine with respect to the issue of Elegance's obligation to pay rent in light of damage caused to the leased premises by Hurricane Sandy. The Referee determined, after a hearing, inter alia, that Elegance was entitled to a rent abatement for November and December 2012 due to the damage caused by Hurricane Sandy. However, the Referee determined that the defendants were liable to the plaintiff "for use and occupancy, which is the fair market rental value of the premises," for continued occupancy of the subject premises after the lease expired from January 1, 2013, through April 15, 2013.

The action proceeded to a nonjury trial on the issue of damages. Following the trial, the Supreme Court determined, inter alia, that the lease obligated Elegance to pay "holdover rent" equal to 150% of the last monthly base rent and other expenses for the period from January 1, 2013, through April 15, 2013, in the total sum of $78,562.34, less the sum of $30,600 for a security deposit, amounting to the sum of $47,962.34. The court further determined that Yuan and Tse also were obligated to pay the sum of $78,562.34, in addition to the sum of $60,189.19 for "holdover rent" and other expenses for the period from April 16, 2013, through July 31, 2013, amounting to the total sum of $158,511.63. Thereupon, the court issued a judgment dated September 5, 2017, which, among other things, is in favor of the plaintiff and against Elegance in the principal sum of $47,962.34, together with fees, costs, and disbursements in the sum of $11,031.50, and is in favor of the plaintiff and against Yuan and Tse in the principal sum of $158,511.63, together with fees, costs, and disbursements in the sum of $11,031.50. The defendants appeal.

Where, as here, a referee was appointed to hear and determine, the referee possesses "all the powers of a court in performing a like function" ( CPLR 4301 ), and the referee's decision "shall stand as the decision of a court" ( CPLR 4319 ; see MMAL Corp. v. Edrich , 156 A.D.3d 780, 780, 67 N.Y.S.3d 261 ). Here, the Referee determined that the plaintiff was entitled to recover damages for "use and occupancy" for the period from January 1, 2013, through April 15, 2013, based on "the fair market rental value of the premises," and the defendants argue that this determination constituted the law of the case. However, this Court is not bound by the doctrine of law of the case (see Lee v. Allen , 165 A.D.3d 907, 908, 83 N.Y.S.3d 916 ).

"In reviewing a determination made after a nonjury trial, the...