Split Rock Developers, LLC v Zartab, Inc.

Split Rock Developers, LLC v Zartab, Inc. 2016 NY Slip Op 00353 Decided on January 20, 2016 Appellate Division, Second 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 January 20, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
LEONARD B. AUSTIN
ROBERT J. MILLER
SYLVIA O. HINDS-RADIX, JJ.
2014-00362
(Index No. 1886/11)

[*1]Split Rock Developers, LLC, respondent,

v

Zartab, Inc., et al., appellants, et al., defendant.

Meyer, Suozzi, English & Klein, P.C., Garden City, NY (Abraham B. Krieger and Kieran X. Bastible of counsel), for appellants.

Jeffrey A. Sunshine, P.C., Jericho, NY (Pollack, Pollack, Isaac & DeCicco [Brian J. Isaac], of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover payment for use and occupancy, the defendants Zartab, Inc., Zartab, Inc., doing business as Royal Palace, and Shahram Zarnighian appeal from a judgment of the Supreme Court, Nassau County (K. Murphy, J.), entered October 3, 2013, which, upon a decision of the same court dated September 11, 2013, made after a nonjury trial, is in favor of the plaintiff and against them in the principal sum of $252,000.

ORDERED that the judgment is affirmed, with costs.

"In reviewing a determination made after a nonjury trial, the power of the Appellate Division is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts,' bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses" (Fernandez v State of New York, 130 AD3d 566, 566, quoting Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; see Samuel Yu v Fortuna Design & Constr. Inc., 106 AD3d 732). However, a verdict rendered by a trial court after a nonjury trial should not be set aside on appeal as against the weight of the evidence unless it is clear that the court's conclusions could not have been reached under any fair interpretation of the evidence (see Ardmar Realty Co. v Building Inspector of Vil. of Tuckahoe, 5 AD3d 517, 518; Perez v Garcia, 304 AD2d 544).

Contrary to the appellants' contentions, the evidence adduced at trial supports the Supreme Court's determination that, during the 28-month period in which the defendants were holdover tenants, the fair market rental value of the subject property was $9,000 per month, and that, as such, the plaintiff was entitled to an award of use and occupancy based upon that fair market rental value (see Real Property Law § 220; Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d at 499; 43rd St. Deli, Inc. v Paramount Leasehold, L.P, 107 AD3d 501; Mushlam, Inc. v Nazor, 80 AD3d 471). Accordingly, we decline to disturb the court's determination (see Ardmar Realty Co. v Building Inspector of Vil. of Tuckahoe, 5 AD3d at 518; Perez v Garcia, 304 AD2d 544).

The appellants' remaining contentions are without merit.

BALKIN, J.P., AUSTIN, MILLER and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court