| Bldg Abi Enters., LLC v 711 Second Ave. Corp. |
| 2022 NY Slip Op 03048 |
| Decided on May 05, 2022 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: May 05, 2022
Before: Gische, J.P., Kern, Oing, González, Scarpulla, JJ.
Index No. 110703/11 Appeal No. 15882-15882A Case No. 2020-02584 2021-00385
v
711 Second Avenue Corp., et al., Defendants-Appellants.
Michael R. Curran, Flushing, for appellants.
Livoti Bernstein & Moraco, PC, Bedford (Robert F. Moraco of counsel), for respondent.
Order, Supreme Court, New York County (Joel M. Cohen, J.), entered April 27, 2020, which, after a nonjury trial, awarded plaintiff damages for unpaid rent, and order, same court and Justice, entered January 14, 2021, which denied defendants' motion to vacate the trial order and for a new trial, unanimously affirmed, without costs.
On May 24, 2010, Civil Court entered a default judgment of possession in favor of plaintiff in a summary proceeding to recover possession of the real property that was the subject of a 12-year commercial lease agreement and personal guaranty with defendants, and in September 2011, plaintiff commenced this action for unpaid rent under that lease. In May 2012, defendants' motion to dismiss the complaint was granted only as to defendant Cheng based on a finding that the lease guaranty was defective due to a typographical error as to the date of the lease. However, upon reconsideration, the court reinstated the claim against Cheng, and this Court affirmed that ruling, finding that issues of fact as to plaintiff's claim of a scrivener's error permitted plaintiff to assert a claim for reformation of the guaranty to correct the date (see BLDG ABI Enters., LLC v 711 Second Ave Corp., 116 AD3d 617 [1st Dept 2014]).
A nonjury trial was held in 2019, after which the trial court, relying in part on the Civil Court judgment, found in plaintiff's favor on the first cause of action, for breach of the lease, and on the third cause of action, for breach of the guaranty.
Contrary to defendants' arguments on appeal, the trial court properly awarded plaintiff damages after trial and properly denied defendants' motion to vacate the trial order and for a new trial. Defendants' claims of error in the trial court's rulings, including its evidentiary and trial rulings as to the admissibility of evidence, the credibility and weight of witness testimony, and the res judicata effect of the Civil Court judgment, are, to the extent reviewable, unavailing and do not otherwise warrant the grant of a new trial.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: May 5, 2022