Opinion
2014-00362 Index No. 1886/11.
01-20-2016
SPLIT ROCK DEVELOPERS, LLC, respondent, v. ZARTAB, INC., et al., appellants, et al., defendant.
Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y., (Abraham B. Krieger and Kieran X. Bastible of counsel), for appellants. Jeffrey A. Sunshine, P.C., Jericho, N.Y., (Pollack, Pollack, Isaac & DeCicco [Brian J. Isaac], of counsel), for respondent.
Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y., (Abraham B. Krieger and Kieran X. Bastible of counsel), for appellants.
Jeffrey A. Sunshine, P.C., Jericho, N.Y., (Pollack, Pollack, Isaac & DeCicco [Brian J. Isaac], of counsel), for respondent.
Opinion
In an action, inter alia, to recover payment for use and occupancy, the defendants Zartab, Inc., Zartab, Inc., doing business as Royal Palace, and Shahram Zarnighian appeal from a judgment of the Supreme Court, Nassau County (K. Murphy, J.), entered October 3, 2013, which, upon a decision of the same court dated September 11, 2013, made after a nonjury trial, is in favor of the plaintiff and against them in the principal sum of $252,000.
ORDERED that the judgment is affirmed, with costs.
“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 this Court may render the judgment it finds ‘warranted by the facts,’ bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses” (Fernandez v. State of New York, 130 A.D.3d 566, 566, 14 N.Y.S.3d 49 quoting 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; see Samuel Yu v. Fortuna Design & Constr. Inc., 106 A.D.3d 732, 966 N.Y.S.2d 106). However, a verdict rendered by a trial court after a nonjury trial should not be set aside on appeal as against the weight of the evidence unless it is clear that the court's conclusions could not have been reached under any fair interpretation of the evidence (see Ardmar Realty Co. v. Building Inspector of Vil. of Tuckahoe, 5 A.D.3d 517, 518, 773 N.Y.S.2d 129; Perez v. Garcia, 304 A.D.2d 544, 756 N.Y.S.2d 899).
Contrary to the appellants' contentions, the evidence adduced at trial supports the Supreme Court's determination that, during the 28–month period in which the defendants were holdover tenants, the fair market rental value of the subject property was $9,000 per month, and that, as such, the plaintiff was entitled to an award of use and occupancy based upon that fair market rental value (see Real Property Law § 220; Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d at 499, 470 N.Y.S.2d 350, 458 N.E.2d 809; 43rd St. Deli, Inc. v. Paramount Leasehold, L.P, 107 A.D.3d 501, 967 N.Y.S.2d 61; Mushlam, Inc. v. Nazor, 80 A.D.3d 471, 916 N.Y.S.2d 25). Accordingly, we decline to disturb the court's determination (see Ardmar Realty Co. v. Building Inspector of Vil. of Tuckahoe, 5 A.D.3d at 518, 773 N.Y.S.2d 129; Perez v. Garcia, 304 A.D.2d 544, 756 N.Y.S.2d 899).
The appellants' remaining contentions are without merit.