Hamad v Avgush

[*1] Hamad v Avgush 2013 NY Slip Op 52240(U) Decided on December 31, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 31, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570979/13.

Hani Hamad, Plaintiff-Respondent, - -

against

Doron Avgush, Defendant-Appellant.

Defendant appeals from a judgment of the Civil Court of the City of New York, Bronx County, (Gerald Lebovits, J.), entered August 13, 2012, after a nonjury trial, in favor of plaintiff and awarding him damages in the principal sum of $5,000.

Per Curiam.

Judgment (Gerald Lebovits, J.), entered August 13, 2012, reversed, without costs, and judgment directed in favor of defendant dismissing the complaint.

No basis was shown to impose liability upon defendant, an out of possession landlord, for the property damage allegedly sustained by the plaintiff-lessee as a result of a fire in the demised premises. Plaintiff offered no competent evidence at trial demonstrating the cause or origin of the fire, and thus a fortiori failed to establish that defendant created or had actual or constructive notice of any causitive defect or condition (see Lau Tung Tsui v New Charlie Tseng Corp., 35 AD3d 390, 391 [2006]). On this record, neither defendant's entitlement under the lease to make "appropriate" repairs nor plaintiff's speculation as to the cause of the fire is sufficient to allow plaintiff to recover.

Even were a proper basis to impose liability upon defendant for the claimed property damage discernable in the record, we would vacate the damage award since plaintiff failed to present any proof whatsoever of the value of the personalty said to have been damaged by the fire or, as the trial court itself stated in its bench decision, to establish "how much money he los[t] [or] what the extent of the damages to the property might be."

In the absence of a cross appeal by plaintiff, the propriety of the court's dismissal of plaintiff's remaining claims is not properly before us. We note, in any event, that plaintiff's claim for the return of his security deposit was barred by the express terms of the governing lease agreement and the "Payment Letter of Commitment" incorporated therein, which specified that the "refundable" security deposit was to be paid not to plaintiff-lessee, but to a (nonparty) corporate entity based in Illinois. To the extent plaintiff additionally sought damages for defendant's alleged failure to provide adequate heat and hot water, that claim was properly dismissed for lack of proof.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 31, 2013