| Todres v W7879, LLC |
| 2016 NY Slip Op 02019 [137 AD3d 597] |
| March 22, 2016 |
| Appellate Division, First Department |
[*1]
| Michael Todres, as the Executor of Sarah CarterCollyer, Deceased, Respondent-Appellant, v W7879, LLC, et al.,Appellants-Respondents. |
Kucker & Bruh LLP, New York (Saul D. Bruh of counsel), forappellants-respondents.
Morton S. Minsley, New York, for respondent-appellant.
Judgment, Supreme Court, New York County (Arthur F. Engoron, J.), enteredNovember 10, 2014, against defendants in plaintiff's favor, unanimously modified, on thelaw, to reduce the principal amount awarded to plaintiff (before the setoff from plaintiffto defendants) from $131,042.94 to $2,618, to adjust the interest calculation and totalamount awarded accordingly, and otherwise affirmed, without costs. The Clerk isdirected to enter an amended judgment accordingly. Appeal from decision, same courtand Justice, entered October 3, 2014, unanimously dismissed, without costs, as takenfrom a nonappealable paper.
Plaintiff waited until his reply brief on his cross appeal to make the legal argumentthat the court should have precluded two defense witnesses from testifying at trial. Thisargument is made too late (see e.g. Schultz v 400 Coop. Corp., 292 AD2d 16, 21[1st Dept 2002]). Were we to consider it, we would find that it was not an improvidentexercise of the court's discretion to allow those witnesses to testify (see CPLR3101 [h]). Unlike the precluded witness in Corso v State of New York (23 Misc 3d 1132[A], 2009 NYSlip Op 51053[U], *3-4 [Ct Cl 2009], affd 73 AD3d 1116 [2d Dept 2010]), thewitnesses in the case at bar were not under defendants' control.
Based on the evidence that was properly admitted, and given the deference due to thetrial court (see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]), the courtproperly found that defendants did not engage in a "fraudulent deregulation scheme toremove an apartment from the protections of rent stabilization" (Matter of Grimm v State of N.Y.Div. of Hous. & Community Renewal Off. of Rent Admin., 15 NY3d 358,367 [2010]; see Matter of Boydv New York State Div. of Hous. & Community Renewal, 23 NY3d 999[2014]). Having so found, however, the court should not have looked at "the rentalhistory of the housing accommodation prior to the four-year period immediatelypreceding the commencement of the action" (CPLR 213-a). In addition, the court shouldnot have awarded treble damages (see Borden v 400 E. 55th St. Assoc., L.P., 24 NY3d 382,398 [2014]).
Neither plaintiff nor defendants are entitled to recover attorneys' fees.
We have considered the remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Sweeny, Manzanet-Daniels and Gische, JJ.