Opinion
2014-03373, Index No. 9863/10.
10-21-2015
CHESTNUT REALTY CORP., respondent, v. Malvin KAMINSKY, et al., appellants.
Law Office of Nicholas M. Moccia, P.C., Staten Island, N.Y., for appellants. The Law Office of Mark E. Nadjar, P.C., Commack, N.Y., for respondent.
Law Office of Nicholas M. Moccia, P.C., Staten Island, N.Y., for appellants.
The Law Office of Mark E. Nadjar, P.C., Commack, N.Y., for respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.
Opinion In an action to recover damages for breach of a lease, the defendants appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County (K. Murphy, J.), entered January 23, 2014, as, upon a decision dated October 29, 2013, made after a nonjury trial, is in favor of the plaintiff and against them in the principal sum of $94,610.
ORDERED that the judgment is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and the complaint is dismissed.
“A surrender by operation of law occurs when the parties to a lease both do some act so inconsistent with the landlord-tenant relationship that it indicates their intent to deem the lease terminated” (Riverside Research Inst. v. KMGA, Inc., 68 N.Y.2d 689, 691–692, 506 N.Y.S.2d 302, 497 N.E.2d 669 ; see Bay Plaza Estates v. New York Univ., 257 A.D.2d 472, 473, 683 N.Y.S.2d 538 ). A surrender by operation of law is to be inferred from the parties' conduct (see Riverside Research Inst. v. KMGA, Inc., 68 N.Y.2d at 692, 506 N.Y.S.2d 302, 497 N.E.2d 669 ; Matter of Wasserman v. Ewing, 270 A.D.2d 427, 428, 705 N.Y.S.2d 271 ). Whether a surrender by operation of law has occurred is a determination to be made on the facts (see Riverside Research Inst. v. KMGA, Inc., 68 N.Y.2d at 692, 506 N.Y.S.2d 302, 497 N.E.2d 669 ; Brock Enters. v. Dunham's Bay Boat Co., 292 A.D.2d 681, 682, 738 N.Y.S.2d 760 ).
In reviewing a determination made after a nonjury trial, the power of the Appellate Division is as broad as that of the trial court and it may render the judgment it finds warranted by the facts, taking into account that in a close case the trial judge had the advantage of seeing and hearing the witnesses (see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 ; Novair Mech. Corp. v. Universal Mgt. & Contr. Corp., 81 A.D.3d 909, 909–910, 917 N.Y.S.2d 876 ; Baygold Assoc. Inc. v. Congregation Yetev Lev of Monsey, Inc., 81 A.D.3d 763, 764, 916 N.Y.S.2d 639, affd. 19 N.Y.3d 223, 947 N.Y.S.2d 794, 970 N.E.2d 829 ). In exercising that power, we conclude that, contrary to the trial court's determination, the evidence established that there was a surrender of the parties' lease by operation of law and, therefore, the defendants are not liable for the rental arrears at issue in this matter. The trial court's determination that paragraph 18.3 of the lease rebutted the evidence supporting a surrender by operation of law is barred by the law of the case doctrine, because we held in a prior appeal of this matter (see Chestnut Realty Corp. v. Kaminski, 95 A.D.3d 1254, 945 N.Y.S.2d 708 ) that paragraph 18.3 of the parties' lease is not applicable where there has been a surrender by operation of law (see J–Mar Serv. Ctr., Inc. v. Mahoney, Connor & Hussey, 45 A.D.3d 809, 809, 847 N.Y.S.2d 130 ).
Accordingly, the judgment must be reversed, and the complaint dismissed.