Vandale L.P. v Liberty Chevrolet Inc.

Vandale L.P. v Liberty Chevrolet Inc. 2012 NY Slip Op 07040 Decided on October 18, 2012 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 on October 18, 2012
Friedman, J.P., Freedman, Richter, Abdus-Salaam, JJ.
8336 16108/07

[*1]Vandale Limited Partnership, Plaintiff-Respondent,

v

Liberty Chevrolet Inc., doing business as Bronx Honda, doing business as Bronx Mazda, Defendant-Appellant.




Bernard Flaton, Garden City, for appellant.

Order, Supreme Court, Bronx County (Diane Lebedeff, J.), entered August 26, 2011, which denied defendant tenant's motion for summary judgment dismissing the complaint and for sanctions and granted plaintiff landlord's cross motion for summary judgment dismissing the counterclaims, unanimously affirmed, with costs.

In this action to recover liquidated damages under a license/lease agreement for holding over past the noticed termination date, the motion court correctly found that landlord rightfully terminated tenant's use of its space pursuant to the parties' agreement which did not provide for termination only at the end of the month-to-month term. In any event tenant vacated the premises and possession of the premises is no longer an issue.

On its motion for summary judgment tenant failed to show that the liquidated damages sought under the agreement's time of the essence holdover clause were unreasonably disproportionate to landlord's actual damages (see Bates Adv. USA, Inc. v 498 Seventh, LLC, 7 NY3d 115, 120 [2006]). The lack of evidence of any alleged trespass or of any improper conduct in violation of Real Property Actions and Proceedings Law § 853 warrants dismissal of the counterclaims.

We have considered tenant's other contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 18, 2012

CLERK