Madison-68 Corp. v Malpass

Madison-68 Corp. v Malpass 2009 NY Slip Op 06154 [65 AD3d 445] August 11, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 30, 2009

Madison-68 Corp., Appellant,
v
David Malpass et al., Respondents.

—[*1] Belkin Burden Wenig & Goldman, LLP, New York (Edward Baer of counsel), for appellant.

Tarter Krinsky & Drogin LLP, New York (Debra Bodian Bernstein of counsel), for respondents.

Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered April 11, 2008, after a nonjury trial, awarding plaintiff the sum of $15,500 with interest from July 1, 2004, costs and disbursements, and which brings up for review an order of the same court and J.H.O., entered March 17, 2008, which, inter alia, denied plaintiff's motion to set aside the trial and restore the case to the trial calendar, and granted defendants' counterclaim for attorneys' fees, unanimously modified, on the law, to the extent that the award of attorneys' fees to defendants is vacated, and otherwise affirmed, without costs.

Plaintiff's objection, made under the best evidence rule, to the admission of the lease rider was properly overruled because it had offered into evidence a copy of the same document. The J.H.O. at times cut off questioning, but did so in an evenhanded manner to expedite the trial, never amounting to prejudicial error (see Lewis v Port Auth. of N.Y. & N.J., 8 AD3d 205, 206 [2004]). Nor was the judgment against the weight of the evidence, since the case essentially turned on the parties' competing oral testimony. The issue of the prevailing party notwithstanding, it was error for the J.H.O. to determine that defendants were entitled to an award of attorneys' fees. In Oxford Towers Co., LLC v Wagner (58 AD3d 422 [2009]), this Court held that an identical lease provision was not covered by Real Property Law § 234. Concur—Mazzarelli, J.P., Andrias, Nardelli, DeGrasse and Abdus-Salaam, JJ.