Opinion
2002-08703, 2003-10252.
December 29, 2003.
In an action, inter alia, to recover damages for breach of certain leases, the defendants appeal from (1) a decision of the Supreme Court, Westchester County (Donovan, J.), dated August 9, 2002, and (2) a judgment of the same court entered August 14, 2002, which, after a nonjury trial and upon the decision, is in favor of the plaintiff and against the defendant Northern Westchester Professional Park Associates in the principal sum of $199,014 and reduced the plaintiff's rent by 15% for the months of July, August, and September 2002.
McCullough, Goldberger Staudt, LLP, White Plains, N.Y., (Charles A. Goldberger and Ruth F-L. Post of counsel), for appellants.
Cuddy Feder, LLP, White Plains, N.Y., (Thomas M. Bloomer and Joshua J. Grauer of counsel), for respondent.
Before: WILLIAM D. FRIEDMANN and HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision ( see Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,
ORDERED that the appeal by the defendant Merv Blank from the judgment is dismissed, as he is not aggrieved by the judgment ( see CPLR 5511); and it is further,
ORDERED that the judgment is modified, on the law, by deleting the provision thereof reducing the plaintiff's rent by 15% for the months of July, August, and September 2002; as so modified, the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
Contrary to the contention of the defendant landlord, Northern Westchester Professional Park Associates, the Supreme Court properly awarded the plaintiff tenant compensatory damages based on the difference between the rent actually paid, and the rental value of the premises as a result of the landlord's breach of the lease obligations to clean, maintain, and repair ( see City of New York v. Pike Realty Corp., 247 N.Y. 245; West Broadway Glass Co. v. I.T.M. Bar Inc., 245 A.D.2d 232; Ripley Mfg. Corp. v. Roosevelt Field, 18 A.D.2d 924). The resulting calculation of damages was reasonable and should not be disturbed.
However, the Supreme Court erred in reducing the plaintiff's rent by 15% for the months of July, August, and September 2002. There was no evidence that the tenant paid any rent for those months. Thus, it was improper for the Supreme Court to authorize the tenant to prospectively withhold a portion of its future rent.
RITTER, J.P., FLORIO, FRIEDMANN and H. MILLER, JJ., concur.