Harlem Lofts, Inc. v Brown

[*1] Harlem Lofts, Inc. v Brown 2013 NY Slip Op 50055(U) Decided on January 16, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 16, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570831/12.

Harlem Lofts, Inc., Plaintiff-Respondent,

against

Andre Brown, Defendant-Appellant.

Defendant appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York (Tanya R. Kennedy, J.), entered on or about July 28, 2011, after trial, in favor of plaintiff and awarding it damages in the principal sum of $2,900.

Per Curiam.

Judgment (Tanya R. Kennedy, J.), entered on or about July 28, 2011, modified to reduce plaintiff's damage award to the principal sum of $1,850; as modified, judgment affirmed, without costs.

Applying the narrow standard of review governing appeals in small claims actions (see CCA 1807), and giving due deference to the trial court's findings of fact and credibility (see Williams v Roper, 269 AD2d 125, 126 [2000], lv dismissed 95 NY2d 898 [2000]), we find no basis to disturb the court's determination that the plaintiff real estate broker was entitled to a commission pursuant to the parties "exclusive" brokerage agreement (see Interactive Props. v Doyle Dane Bernbach, 125 AD2d 265, 272-273 [1986], lv denied 70 NY2d 613 [1987]). The record supports a finding that defendant's intentional delay in executing the lease agreement with his prospective tenant constituted a bad faith attempt to deprive plaintiff of a commission, conduct which cannot be allowed to absolve defendant of liability otherwise firmly established (see Sibbald v Bethlehem Iron Co., 83 NY 378, 384 [1881]; O'Connell v Rao, 70 AD2d 982 [1979], lv denied 48 NY2d 609 [1979]; Julien J. Studley, Inc. v Coach, Inc., 3 AD3d 358, 359 [2004]). Thus, the court's resolution of the liability aspect of the action in plaintiff's favor achieved substantial justice consistent with substantive law principles (see CCA 1804, 1807).

Giving proper effect to the terms of the brokerage agreement limiting the amount of plaintiff's "commission" to one month's rent in the event of a contractual "infraction," we reduce the damage award to the principal sum of $1,850, the monthly rent set forth in the lease entered into by
defendant as lessor.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: January 16, 2013