| Community Prods., LLC v Northvale Prop. Assoc., LLC |
| 2009 NY Slip Op 03121 [61 AD3d 806] |
| April 21, 2009 |
| Appellate Division, Second Department |
| Community Products, LLC, Respondent, v NorthvaleProperty Associates, LLC, Appellant. |
—[*1] Tarshis, Catania, Liberth, Mahon & Milligram, PLLC, Newburgh, N.Y. (Richard M. Mahonof counsel), for respondent.
In an action, inter alia, to recover the security deposit on a commercial lease, the defendantappeals, as limited by its brief, from stated portions of a judgment of the Supreme Court, OrangeCounty (Alfieri, J.), dated November 26, 2007, which, after a nonjury trial, and upon a decisionof the same court dated September 7, 2007, inter alia, is in favor of the plaintiff and against it inthe principal sum of $ 36,614.44.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
Upon review of a determination made after a nonjury trial, this Court's authority is "as broadas that of the trial court," and this Court may "render the judgment it finds warranted by thefacts, taking into account in a close case 'the fact that the trial judge had the advantage of seeing[and hearing] the witnesses' " (Northern Westchester Professional Park Assoc. v Town ofBedford, 60 NY2d 492, 499 [1983]; A-Tech Concrete Co. v Tilcon N.Y., Inc., 60 AD3d 603 [2009]).
Here, the plaintiff failed to show that the oral modification of the lease was "unequivocallyreferable to the [alleged] oral" contract (Rose v Spa Realty Assoc., 42 NY2d 338,343-344 [1977]; see Luft v Luft, 52AD3d 479, 481 [2008]) and, thus, the Supreme Court erred in determining that the partieshad orally modified the lease to permit the plaintiff's installation of a conveyor system. [*2]Nonetheless, the Supreme Court properly determined that thedefendant failed to establish, by a preponderance of the evidence, any damages caused by theinstallation or removal of the conveyor system or, indeed, that the plaintiff failed to maintain andrepair the floor of the warehouse pursuant to the terms of the lease as alleged in the firstcounterclaim (see Centre Great Neck Co. v Penn Encord, 276 AD2d 735, 736 [2000]).
Since the Supreme Court's findings and determination concerning the issues of liability anddamages were warranted by the facts, they will not be disturbed (see A-Tech Concrete Co. v Tilcon N.Y.,Inc., 60 AD3d 603 [2009]; Praimnath v Torres, 59 AD3d 419 [2009]).
The defendant's remaining contentions either have been rendered academic in light of ourdetermination or are without merit. Spolzino, J.P., Fisher, Miller and Balkin, JJ., concur.