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Game Sportswear, Inc. v. Ernest Simons Co.

Appellate Division of the Supreme Court of New York, Second Department
Nov 8, 1999
266 A.D.2d 260 (N.Y. App. Div. 1999)

Opinion

Argued September 13, 1999

November 8, 1999

Cassin Cassin Joseph, LLP (Joseph M. Buderwitz, White Plains, N Y [Denise M. Cossu] and Kenny Stearns [Michael C. Mull counsel), for appellant.

Mann Mann, Port Chester, N.Y. (Carolyn H. Mann and Monroe Y. Mann of counsel), for respondent.

LAWRENCE J. BRACKEN, J.P., SONDRA MILLER, GABRIEL M. KRAUSMAN, HOWARD MILLER, JJ.


DECISION ORDER

In an action, inter alia, to recover damages for constructive eviction, the defendant appeals from a judgment of the Supreme Court, Westchester County (Nastasi, J.), entered June 19, 1998, which, after a nonjury trial, awarded the plaintiff the principal sum of $23,000 and dismissed its counterclaim.

ORDERED that the judgment is modified, on the law, by deleting the first decretal paragraph thereof awarding the plaintiff damages in the principal sum of $23,000 and substituting therefor a decretal paragraph dismissing its causes of action to recover damages; as so modified, the judgment is affirmed, without costs or disbursements.

The Supreme Court correctly concluded that the plaintiff proved the requisite elements of a constructive eviction (see, Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77 ; Johnson v. Cabrera, 246 A.D.2d 578 ; Hayden v. Kehoe, 177 App. Div. 734 ). Accordingly, the court properly determined that the plaintiff was excused from its remaining contractual liability under its lease (see, Johnson v. Cabrera, supra) and that the defendant's counterclaims for damages should be dismissed. However, the plaintiff failed to establish, prima facie, its entitlement to damages and thus its causes of action to recover damages are dismissed (see, Barleo Homes v. Tudomawr Corp., 214 A.D.2d 694 ;Kornhuber v. State of New York, 196 A.D.2d 629 ).

BRACKEN, J.P., S. MILLER, KRAUSMAN, and H. MILLER, JJ., concur.


Summaries of

Game Sportswear, Inc. v. Ernest Simons Co.

Appellate Division of the Supreme Court of New York, Second Department
Nov 8, 1999
266 A.D.2d 260 (N.Y. App. Div. 1999)
Case details for

Game Sportswear, Inc. v. Ernest Simons Co.

Case Details

Full title:GAME SPORTSWEAR, Inc., respondent, v. ERNEST SIMONS COMPANY, INC.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 8, 1999

Citations

266 A.D.2d 260 (N.Y. App. Div. 1999)
698 N.Y.S.2d 522