| Runfola v Cavagnaro |
| 2010 NY Slip Op 08720 [78 AD3d 1035] |
| November 23, 2010 |
| Appellate Division, Second Department |
| Agatina Runfola, Appellant, v David Cavagnaro et al.,Respondents. (And a Third-Party Action.) |
—[*1] Crawford & Bringslid, P.C., Staten Island, N.Y. (Allyn J. Crawford of counsel), forrespondents.
In an action, inter alia, to recover upon a personal guaranty, the plaintiff appeals from ajudgment of the Supreme Court, Richmond County (Ajello, J.H.O.), dated July 6, 2010, which,upon a decision of the same court dated April 20, 2010, made after a trial on the issue of liability,and upon a separate decision dated June 14, 2010, made after an inquest on the issue of damages,is in favor of her and against the defendants in the principal sum of only $29,117.70.
Ordered that the judgment is affirmed, with costs.
Contrary to the plaintiff's contention, the Supreme Court's calculation of damages was noterroneous. In its decision dated April 20, 2010, which addressed the issue of liability, theSupreme Court correctly determined that because the lease in question does not contain anacceleration clause, the defendants were not liable to the plaintiff landlord, pursuant to theirpersonal guaranty of the subject lease, for any rent deficiency that had not yet accrued (seeLong Is. R.R. Co. v Northville Indus. Corp., 41 NY2d 455, 465 [1977]; Barr v CountryMotor Car Group, Inc., 15 AD3d 985, 986 [2005]; 210 W. 29th St. Corp. v Chohan,13 AD3d 613 [2004]; Beaumont Offset Corp. v Zito, 256 AD2d 372 [1998]; Muss vDaytop Vil., 43 AD2d 945 [1974]). Accordingly, in the judgment appealed from, the courtproperly awarded the plaintiff damages only for the rent deficiency that had already accrued bythe filing date of her complaint (see Barr v Country Motor Car Group, Inc., 15 AD3d at986; Beaumont Offset Corp. v Zito, 256 AD2d at 372; Muss v Daytop Vil., 43AD2d at 945). Covello, J.P., Dickerson, Belen and Lott, JJ., concur.