| Sterling Inv. Servs., Inc. v 1155 NOBO Assoc., LLC |
| 2009 NY Slip Op 06532 [65 AD3d 1128] |
| September 15, 2009 |
| Appellate Division, Second Department |
| Sterling Investor Services, Inc., Respondent, v 1155NOBO Associates, LLC, Appellant. |
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Rosenberg Calica & Birney LLP, Garden City, N.Y. (Ronald J. Rosenberg and Lesley A.Reardon of counsel), for respondent.
In an action, inter alia, for a judgment declaring that the plaintiff was actually partiallyevicted from portions of certain leased premises, the defendant appeals from a judgment of theSupreme Court, Nassau County (Martin, J.), entered August 4, 2008, which, upon a decisiondated June 11, 2008, made after a nonjury trial, is in favor of the plaintiff and against it,declaring that the plaintiff was actually partially evicted from portions of the leased premises andareas appurtenant thereto, and that the plaintiff's obligation to pay rent was and is suspendedfrom October 2002 until the leased premises and areas appurtenant thereto are restored to theplaintiff in the same state as they were in prior to September 2002, and dismissing thecounterclaims.
Ordered that the judgment is affirmed, with costs.
The salient facts concerning the plaintiff's claim that it was actually partially evicted fromportions of the subject leased premises are set forth in a prior appeal (see Sterling Inv. Servs., Inc. v 1155 NoboAssoc., LLC, 30 AD3d 579, 580 [2006]). In the prior appeal, we determined thatsummary judgment was improperly awarded to the defendant where the unambiguous andthoroughly negotiated lease at issue did not preclude a claim for actual partial eviction based onthe defendant's conduct, and that issues of fact existed as to whether the plaintiff was oustedfrom portions of the leased premises and the areas appurtenant thereto. Following ourdetermination of that appeal, the parties proceeded to trial. The issue on the instant appeal iswhether the evidence adduced at trial warrants the determination made by the Supreme Court,after a nonjury trial, that the plaintiff was actually partially evicted from portions of the leasedpremises and areas appurtenant thereto, and that its obligation to pay rent was and is suspendedfrom October 2002 until the leased premises and areas appurtenant thereto are restored to theplaintiff in the same state they were in prior to September 2002, and that the counterclaims mustbe dismissed.
Where a matter is tried without a jury, the authority of this Court on appeal "is as broad asthat of the trial court . . . and . . . as to a bench trial [we] may renderthe judgment [we] find[ ] warranted by the facts, taking into account in a close case the fact thatthe trial judge had the advantage [*2]of seeing the witnesses"(Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499[1983] [internal citations and quotation marks omitted]). Where the findings of fact "rest in largemeasure on considerations relating to the credibility of witnesses" (Anderson v Mastrangelo, 18 AD3d677, 677 [2005]), deference is owed to the trial court's credibility determinations (see Praimnath v Torres, 59 AD3d419, 419-420 [2009]). Based on the record before us, we discern no basis to disturb theSupreme Court's determination. Rivera, J.P., Florio, Dickerson and Austin, JJ., concur.