WE'RE ASSOCIATES COMPANY v. Rodin Sportswear Ltd.

• Decision Date: 26 November 2001
• Citation: WE'RE ASSOCIATES COMPANY v. Rodin Sportswear Ltd., 288 AD2d 465, 734 N.Y.S.2d 104 (N.Y. App. Div. 2001)
• Parties: WE'RE ASSOCIATES COMPANY, Appellant,<BR>v.<BR>RODIN SPORTSWEAR LTD., Respondent.
• Court: New York Supreme Court — Appellate Division

288 A.D.2d 465

734 N.Y.S.2d 104

WE'RE ASSOCIATES COMPANY, Appellant,

v.RODIN SPORTSWEAR LTD., Respondent.

Decided November 26, 2001.

Krausman, J. P., S. Miller, Smith and Crane, JJ., concur.

Ordered that the judgment is reversed, on the law and the facts, with costs, and it is declared that the appellant timely exercised its option to terminate the lease.

"On an appeal from a judgment rendered after a nonjury trial, this Court's standard of review is not limited to whether the trial court's verdict is against the weight of the evidence. This Court may `review * * * the record as a whole and * * * grant the judgment warranted'" (Ancewicz v Western Suffolk BOCES, 282 AD2d 632, quoting Matter of Hall v Barnes, 225 AD2d 837, 839). Our scope of review is as broad as that of the trial court (see, Lozada v State of New York, 267 AD2d 215; U.S. No. 1 Laffey Real Estate v Hanna, 215 AD2d 552).

Upon a review of the record, we find that the evidence supports the conclusion that the appellant landlord met its burden of proof. Pursuant to Paragraphs 34 and 49 of the commercial lease between the appellant and the respondent tenant, the appellant had the right to terminate the lease before the end of its term provided that the appellant sent a notice of termination by certified mail on or before March 31, 2000. The evidence overwhelmingly established that the appellant sent the notice of termination by certified mail on March 15, 2000. Indeed, the appellant was assisted in sustaining its burden by a preponderance of the credible evidence by a presumption of mailing (see, Nassau Ins. Co. v Murray, 46 NY2d 828; ...