Opinion
2012-06-7
B.N. REALTY ASSOCIATES, Plaintiff–Appellant–Respondent, v. Ben LICHTENSTEIN, Defendant–Respondent–Appellant, Naomi Lichtenstein, Defendant.
Jeffrey F. Cohen, Bronx, for appellant-respondent. Bruce A. Young, New York, for respondent-appellant.
Jeffrey F. Cohen, Bronx, for appellant-respondent. Bruce A. Young, New York, for respondent-appellant.
GONZALEZ, P.J., ANDRIAS, SAXE, DeGRASSE, ROMÁN, JJ.
Judgment, Supreme Court, Bronx County (Norma Ruiz, J.), entered March 8, 2011, to the extent appealed from, after a nonjury trial, dismissing plaintiff landlord's complaint against defendant-respondent tenant (defendant) with prejudice, and dismissing defendant's counterclaims, unanimously reversed, on the law, without costs, the judgment vacated, the complaint and the counterclaims reinstated, except for the counterclaims for sanctions and attorneys' fees, and the matter remanded for further proceedings consistent herewith.
The IAS court properly denied plaintiff's motion in limine. On a prior appeal (21 A.D.3d 793, 801 N.Y.S.2d 271 [2005] ), this Court affirmed the denial without prejudice of that branch of plaintiff's motion for summary judgment awarding plaintiff back rent in the amount of $42,544.32. Accordingly, contrary to plaintiff's contention, this Court's decision did not mandate the preclusion at trial of evidence that contradicts plaintiff's claim to back rent.
The IAS court correctly found that plaintiff did not qualify for the exception to the best evidence rule that applies to lost or destroyed documents, given plaintiff's failure to provide any excuse for nonproduction of the lease at issue ( Schozer v. William Penn Life Ins. Co. of N.Y., 84 N.Y.2d 639, 644, 620 N.Y.S.2d 797, 644 N.E.2d 1353 [1994] ). However, given that defendant based his counterclaim for attorneys' fees on the terms of the same written lease, and that he admitted the amount of rent due under the lease on the stand, among other places, the court should have allowed proof of the lease and rent amount through those secondary sources ( see East Egg Assoc. v. Diraffaele, 158 Misc.2d 364, 366, 600 N.Y.S.2d 999 [1993],affd. 160 Misc.2d 667, 614 N.Y.S.2d 102 [1994] ).
As plaintiff concedes, its failure to cash the rent checks tendered by defendant acts as a waiver of any claim to prejudgment interest or attorneys' fees ( San–Dar Assoc. v. Toro, 213 A.D.2d 233, 234–235, 623 N.Y.S.2d 865 [1995] ). It was undisputed that plaintiff failed to tender renewal leases to defendant, a rent-stabilized tenant. However, that does not constitute a waiver of rent; it simply requires that plaintiff prove the rent through quantum meruit, or some subsequent agreement of the parties ( see Sacchetti v. Rogers, 12 Misc.3d 131(A), 2006 N.Y. Slip Op. 51114[U], 2006 WL 1623080 [2006] ). Here, given defendant's numerous admissions of the rent term and the amount tendered, plaintiff met that burden. Because plaintiff established its prima facie entitlement to $42,544.32 in back rent, we remand for a trial on defendant's counterclaims, setoffs and affirmative defenses, except for the counterclaims for sanctions and attorneys' fees and the affirmative defense of laches. Defendant is not entitled to sanctions and attorneys' fees, as plaintiff is the prevailing party and entitled to back rent. Further, this Court previously dismissed defendant's affirmative defense of laches ( see21 A.D.3d at 794, 799, 801 N.Y.S.2d 271).