Opinion
10711 Index 150625/12
01-07-2020
FITZGERALD EDIBLES, INC., doing business as P.J. Carneys, Plaintiff–Appellant, v. OSBORNE TENANTS CORP., et al., Defendants–Respondents, Yunga Construction Inc., Defendant.
Law Office of James C. Mantia, P.C., New York (James C. Mantia of counsel), for appellant. Robert I. Cantor, PLLC, New York (Patrick Train–Gutie´rrez of counsel), for respondents.
Law Office of James C. Mantia, P.C., New York (James C. Mantia of counsel), for appellant.
Robert I. Cantor, PLLC, New York (Patrick Train–Gutie´rrez of counsel), for respondents.
Friedman, J.P., Webber, Singh, Moulton, JJ.
Order, Supreme Court, New York County (David B. Cohen, J.), entered May 11, 2018, which, to the extent appealed from, granted defendants Osborne Tenants Corp. and Joseph Ferrara's motion to set aside the award of punitive damages, and denied plaintiff's application for a judgment declaring that it is restored to possession of contested areas of the building and that it has a prescriptive easement, unanimously affirmed, without costs.
The trial court's conclusion that restoration to the premises following the wrongful eviction would be futile is supported by the jury's finding that there was no trespass to land (see Matter of 110–45 Queens Blvd. Garage v. Park Briar Owners, 265 A.D.2d 415, 416, 696 N.Y.S.2d 490 [2d Dept. 1999] ). The trial court also correctly concluded, given the trial testimony that plaintiff had permission from the net lessee to use the vestibule or, alternatively, that the vestibule was a common area, that plaintiff's use lacked the requisite hostility to establish its entitlement to a prescriptive easement (see Amalgamated Dwellings, Inc. v. Hillman Hous. Corp., 33 A.D.3d 364, 822 N.Y.S.2d 499 [1st Dept. 2006] ; 10 E. 70th St. v. Gimbel, 309 A.D.2d 644, 645, 766 N.Y.S.2d 38 [1st Dept. 2003] ).
On this record, the court properly set aside the award of punitive damages.