Echelon Photography, LLC v Dara Partners, L.P.

[*1] Echelon Photography, LLC v Dara Partners, L.P. 2009 NY Slip Op 52184(U) [25 Misc 3d 133(A)] Decided on October 28, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 28, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
.

Echelon Photography, LLC and Gordon Gooch, 570384/08 Petitioners-Tenants-Respondents,

against

Dara Partners, L.P., c/o Ossa Respondents-Landlords-Appellants.

Landlords appeal from an order of the Civil Court of the City of New York, New York County (Barbara Jaffe, J.), dated March 11, 2008, and from a final judgment (same court and Judge), entered March 26, 2008, after a trial on damages, in favor of petitioner-tenant Gordon Gooch in the principal sum of $98,293.68, plus interest from November 2, 2005, and costs and disbursements in a wrongful eviction proceeding.

Per Curiam.

Final judgment (Barbara Jaffe, J.), entered March 26, 2008, modified by reducing tenant Gooch's recovery of damages to the principal sum of $33,627.08, together with prejudgment interest from November 3, 2005, the date of the wrongful eviction; as modified, final judgment affirmed, with $25 costs. Appeal from order (same court and Judge), dated March 11, 2008, dismissed, without costs, as subsumed in the appeal from the final judgment.

We agree with landlords' contention that the trial court improperly calculated the individual tenant's "lost sublet income" on the basis of gross income alone, without factoring in tenant's own rent as an expense (see Randall-Smith, Inc. v 43rd St. Estates Corp., 17 NY2d 99, 105 [1966]; Lee Kin Chiu v City of New York, 174 Misc 2d 422, 426 [1997]). Thus, we reduce tenant's award for "lost sublet income" from $4,613.49 per month, the amount of monthly gross sublet income, to $552.89.

Based upon landlords' concessions at oral argument of this appeal, tenant is entitled to treble damages for wrongful eviction in the principal sum of $45,627.08, subject to landlords' offset. As to the offset, we decline to disturb the trial court's determination limiting the offset to the sum of $12,000 for use and occupancy accruing between April 2006 and June 2006.

The trial court properly dismissed landlords' claim for attorneys' fees in prosecuting a related holdover proceeding and for rent arrears since landlords failed to preserve these claims in the parties' so-ordered stipulation dated June 12, 2006 settling the holdover proceeding (see J.D. Realty Assoc. v Shanley, 288 AD2d 27 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: October 28, 2009