Tosi v Yorkshire Towers GP Co., LLC

[*1] Tosi v Yorkshire Towers GP Co., LLC 2014 NY Slip Op 51754(U) Decided on December 15, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
570408/14

Richard Tosi, Plaintiff-Appellant,

against

Yorkshire Towers GP Co., LLC and Yorkshire Towers Company, L.P. a/k/a Yorkshire Towers Company Successor, L.P., Defendants-Respondents.

Plaintiff, as limited by his briefs, appeals from (1) an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered April 12, 2013, after a nonjury trial, which dismissed the complaint and found in favor of defendants on the issue of liability on their third and fourth counterclaims;(2) an order (same court and Judge), entered May 7, 2013, which, after a hearing, awarded defendants the principal sums of $9,300 on their third counterclaim and $25,879 on their fourth counterclaim; and (3) a judgment (same court and Judge), entered June 26, 2013, in favor of defendants and awarding them damages in the principal sum of $38,527.

Per Curiam.

Judgment (Robert R. Reed, J.), entered June 26, 2013, affirmed, with $25 costs. Appeal from orders (Robert R. Reed, J.), entered, respectively, April 12, 2013 and May 7, 2013, dismissed, without costs, as subsumed in the appeal from the judgment.

We sustain the dismissal after trial of plaintiff-tenant's main action seeking the return of his security deposit and the award issued in favor of defendant-landlords on their counterclaim for unpaid rent. The trial evidence, fairly interpreted, supports the court's finding that plaintiff vacated the subject apartment premises five months prior to the expiration of his lease term. Pursuant to Article 15(B) of the lease, plaintiff remained responsible for rent until the end of the lease term, and pursuant to Article 4, defendants were entitled to apply plaintiff's security deposit to unpaid rent accruing after plaintiff's early vacatur of the leasehold.

We find unavailing, as did the trial court, plaintiff's reliance on a putative oral agreement between the parties purporting to allow plaintiff to prematurely terminate the leasehold. Enforcement of any such oral agreement is barred by Article 27(D) of the lease, which requires "[a]ny agreement to end this lease and also to end the rights and obligations of [tenant] and owner [to] be in writing, signed by [tenant] and owner or owner's agent." Since it was undisputed that there was no writing signed by defendants consenting to plaintiff's surrender or [*2]otherwise waiving defendants' right to recover rent for the balance of the lease term, any alleged oral agreement is unenforceable (see General Obligations Law § 15-301[1]; 99 Realty Co. v Eikenberry, 242 AD2d 215, 215 [1997]). Nor is the part performance exception to the statute of frauds applicable here, since plaintiff's "departure from the premises prior to the expiration of the lease term cannot be deemed to be unequivocally referable to the claimed oral modification" (Joseph P. Day Realty Corp. v Lawrence Assoc., 270 AD2d 140, 141-142 [2000]).

Defendants, as the prevailing parties in this action, are entitled to attorneys's fees pursuant to Article 19(A)(5) of the governing lease agreement. The court properly evaluated defense counsel's testimonial and documentary evidence concerning the nature, extent and necessity of the legal services rendered herein, appropriately recognizing that the matter involved a "substantial amount of writings exchanged between counsel . . . multiple motions . . . [necessitating] at least 16 court dates, [and culminating] with a full blown contentious trial."

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 15, 2014