EHRENWORTH v. KAUFELT (2005)

Judgment entered September 17, 2003 (Jose A. Padilla, Jr., J.) affirmed, with $25 costs.   Appeal from order dated July 7, 2003 (Jose A. Padilla, Jr., J.) dismissed, without costs, as superceded by the appeal from the aforesaid judgment.

 The action arises out of the defendants' rental of a single family residence owned by plaintiff and located at 109 Bank Street, in Manhattan.   The extensive record developed on the parties' cross motions for summary judgment, including defendant Kaufelt's own deposition testimony, conclusively demonstrates that defendants, as tenants, breached the provisions of paragraph 38 of the rider to the governing lease agreement, which, while permitting defendants to use and list in their own names plaintiff's telephone number during their occupancy period, required defendants to “re-list” the telephone number in plaintiff's name upon the expiration of the lease term.   Irrespective of whether plaintiff possessed a cognizable possessory interest in the telephone number (compare Slenderella Sys. of Berkeley, Inc. v. Pacific Tel. & Telegraph Co., 286 F.2d 488, 490 [2d Cir.1961], with In re Fontainebleau Hotel Corp., 508 F.2d 1056, 1059 [5th Cir.1975];  see also Atlantic & Western Travel, Inc. v. New York Tel. Co., 40 Misc.2d 950, 951, 244 N.Y.S.2d 751 [1963] ), plaintiff clearly was entitled to contractually protect his right to the continued use of the telephone number assigned to him-featuring a “212” area code and a “5700” suffix-and to enforce the plain contractual terms safeguarding that right affirmatively assented to by defendants (see Atlantic & Western Travel, Inc. v. New York Tel. Co., supra;  see also Lewis v. Universal Tax Sys., Inc., 52 A.D.2d 535, 381 N.Y.S.2d 890 [1976] ).

 Defendants' assertion that the liquidated damages provision embodied in paragraph 38 of the lease rider constitutes an unenforceable penalty, raised (obliquely) for the first time in their sur-reply papers below, is not properly before us (see Solow v. Avon Prod., Inc., 301 A.D.2d 441, 752 N.Y.S.2d 887 [2003];  Severino v. Classic Collision, Inc., 280 A.D.2d 463, 719 N.Y.S.2d 902 [2001] ).   In any event, the liquidated damages clause is enforceable, since the provision represented a bargained-for element in a multi-faceted agreement, the amount of actual loss was difficult, if not impossible to calculate, and the damage amount fixed (the equivalent of one month's rent under the lease) was not unreasonable in view of “ ‘the surrounding circumstances and the apprehension of damage that existed in the minds of the parties at the time the contract was made.’  (36 N.Y. Jur. 2d, Damages, § 156, at 267.)”  (LeRoy v. Sayers, 217 A.D.2d 63, 69, 635 N.Y.S.2d 217 [1995];  see also Parsons & Whittemore, Inc. v. 405 Lexington L.L.C., 299 A.D.2d 156, 157, 753 N.Y.S.2d 36, lv. dismissed in part and denied in part 99 N.Y.2d 650, 760 N.Y.S.2d 99, 790 N.E.2d 273 [2003].)

This constitutes the decision and order of the court.

PER CURIAM.