Able Adult Day Care Ctr. Inc. v Britton Prop., Inc.

[*1] Able Adult Day Care Ctr. Inc. v Britton Prop., Inc. 2015 NY Slip Op 51788(U) Decided on December 2, 2015 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ELLIOT, J.P., PESCE and SOLOMON, JJ.
2014-1242 Q C

Able Adult Day Care Center Incorporated, Respondent,

against

Britton Property, Inc., Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered October 18, 2013. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $12,000.

ORDERED that the judgment is affirmed, without costs.

In this action for the return of a $12,000 security deposit given in anticipation of the signing of a lease, the evidence adduced at trial established that the parties negotiated a proposed lease, which was to contain a rider with 18 points. The terms of the proposed agreement had been tentatively accepted by plaintiff, subject to a review by plaintiff's attorney. Plaintiff gave defendant a $12,000 good faith deposit, in exchange for defendant's promise not to show the premises to any other prospective tenants in the interim, and which deposit would be nonrefundable if plaintiff failed to sign a formal lease which would be forthcoming. After defendant's attorney prepared the final version of the lease and presented it to plaintiff, plaintiff refused to sign it, as the rider now contained 34 points, including numerous non-negotiated additional points. Thereafter, defendant refused to return the deposit. After a nonjury trial, the Civil Court found that as there was a material deviation from the terms negotiated by the parties, plaintiff was justified in not signing the lease submitted to it and, thus, plaintiff was entitled to the return of the $12,000 deposit. A judgment was entered accordingly in favor of plaintiff.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

Upon a review of the record, we agree with the Civil Court's finding that the lease defendant ultimately presented to plaintiff contained numerous provisions that had not been previously negotiated. Thus, plaintiff was entitled to the return of its deposit, which it made with the understanding that the lease to be signed would contain only the previously negotiated terms.

Accordingly, the judgment is affirmed.

Elliot, J.P., Pesce and Solomon, JJ., concur.

Decision Date: December 02, 2015