| Gordon v Eshaghoff |
| 2009 NY Slip Op 01945 [60 AD3d 807] |
| March 17, 2009 |
| Appellate Division, Second Department |
| Maris Gordon, Respondent-Appellant, v RaymondEshaghoff et al., Appellants-Respondents. |
—[*1] Peter S. Thomas, P.C., Forest Hills, N.Y., for respondent-appellant.
In an action, inter alia, to recover damages for breach of a lease, the defendants appeal, aslimited by their brief, from so much of a judgment of the Supreme Court, Nassau County(Cozzens, Jr., J.), entered October 26, 2007, as, after a nonjury trial, is in favor of the plaintiffand against them in the principal sum of $196,056, and the plaintiff cross-appeals, as limited byher brief, from so much of the same judgment as failed to award her the sum of $18,000representing the defendants' security deposit and failed to award her the sum of $50 per day as alate fee for all rent payments not made within 10 days of the due date.
Ordered that the judgment is affirmed insofar as appealed and cross-appealed from, withoutcosts or disbursements.
Contrary to the defendants' contention, the facts adduced at the nonjury trial do not support afinding that there was surrender of the parties' residential lease by operation of law (seeRiverside Research Inst. v KMGA, Inc., 68 NY2d 689, 691-692 [1986]; Ventresca Realty Corp. v Houlihan ParnesCorp., 15 AD3d 570, 570-571 [2005]; cf. 4400 Equities, Inc. v Dhinsa, 52 AD3d 654 [2008]). Further,the Supreme Court properly determined that the plaintiff, a residential landlord, was under noduty to mitigate her damages caused by the defendants' breach of the parties' lease (see HolyProps. v Cole Prods., 87 NY2d 130, 133-134 [1995]; Rios v Carrillo, 53 AD3d 111, 113-114 [2008]).
The Supreme Court properly declined to award to the plaintiff the defendants' $18,000security deposit. The lease provision that the plaintiff relies upon simply provides, in relevantpart, [*2]the following: "[T]enant shall not attempt to apply ordeduct any portion of any security deposit from the last or any month's rent or use or apply anysuch security deposit at any time in lieu of payment of rent. If Tenant fails to comply, suchsecurity deposit shall be forfeited and Landlord may recover the rent due as if any such deposithad not been applied or deducted from the rent due." "A contractual provision fixing damages inthe event of breach will be sustained if the amount liquidated bears a reasonable proportion tothe probable loss and the amount of actual loss is incapable or difficult of precise estimation"(Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 NY2d 420, 425 [1977]). Here, the leaseprovision regarding the forfeiture of the security deposit does not bear a reasonable relation tothe amount of probable actual loss, and actual loss is susceptible of calculation (see Construction by Singletree, Inc. vLowe, 55 AD3d 861 [2008]).
The Supreme Court also properly declined to award the plaintiff the sum of $50 per day as alate fee for all rent payments not made within 10 days of the due date. While the lease providedthat the landlord "may" impose the late fee, there was no evidence submitted at the trial todemonstrate that the plaintiff ever imposed the fee.
The defendants' remaining contention is without merit. Rivera, J.P., Florio, Dickerson andChambers, JJ., concur.