Wong v Pan Am Equities, Inc.

[*1] Wong v Pan Am Equities, Inc. 2014 NY Slip Op 50699(U) Decided on April 30, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 30, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Ling-Cohan, JJ
570120/14.

Warren Wong, Plaintiff-Appellant,, - -

against

Pan Am Equities, Inc. and, Whitehall Properties, LLC, Defendants-Respondents,

Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered on or about July 16, 2012, after trial, in favor of defendants dismissing the action.

Per Curiam.

Judgment (Robert R. Reed, J.), entered on or about July 16, 2012, modified by reinstating the action against defendant Whitehall Properties, LLC, awarding plaintiff judgment against said defendant on the issue of liability, and remanding for a new trial on the issue of damages only as against said defendant; as modified, judgment affirmed, without costs.

Plaintiff, a former tenant of a residential apartment building owned and managed by defendants, instituted this small claims action to recover a security deposit. The uncontroverted evidence elicited at trial showed that plaintiff, together with his co-tenant (a nonparty to the action), timely tendered the full amount of rent owed to defendant-landlord through September 2010, and returned the keys and vacated the apartment premises - so far as shown in broom clean condition - on September 28, 2010. The weight of the evidence thus compels the conclusion that plaintiff substantially complied with the parties' May 2010 "Early Termination Agreement," whose provisions required plaintiff and his cotenant to vacate the apartment between September 30, 2010 and October 2, 2010, on pain of "forfeit[ing]" their security deposit. After all, the record shows that defendant took full and timely possession of the premises and incurred no additional expense or loss of rent as a result of plaintiff's minimally premature removal, a scant two days prior to the vacatur period targeted in the parties' early termination agreement. Plaintiff was thus shown to have "committed nothing more than a trivial or technical breach' of the agreement that did not trigger the forfeiture provision" (Agility Funding, LLC v Loosch, 108 AD3d 820, 821 [2013], quoting Fifty States Mgt. Corp. v Pioneer Auto Parks, 46 NY2d 573, 576-577 [1979]; see Guan Tou Mkt., Inc. v 373 Wythe Ave. Realty, Inc., 111 AD3d 667 [2013]). In these circumstances, "substantial justice" (CCA 1807) is best served by resolving the liability aspect of the case in favor of plaintiff and against defendant building owner. A different result obtains, however, with respect to the defendant management firm, which "may not be held liable [*2]for breach of its contractual duties since it was at all times acting as agent for a disclosed principal" (Brasseur v Speranza, 21 AD3d 297, 299 [2005]).

A new trial is required on the issue of damages, since the present record does not reflect the amount of the security deposit here involved or the plaintiff's proportional share thereof in relation to that of the nonparty cotenant.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 30, 2014