STORICO DEVELOPMENT LLC v. BATLLE (2004)

Plaintiff commenced this action seeking to recover damages after defendant defaulted on a lease.   Defendant appeals from a judgment entered in favor of plaintiff following a nonjury trial.   Defendant contends that the lease was not valid because it was never delivered and further contends that the leased premises were not suitable for their intended use as a medical office on the day that the lease term was to commence.

 Although delivery is an essential element of a cause of action seeking enforcement of a lease (see 219 Broadway Corp. v. Alexander's, 46 N.Y.2d 506, 512, 414 N.Y.S.2d 889, 387 N.E.2d 1205), defendant failed to preserve for our review his challenge to the sufficiency of the evidence of delivery (see e.g. Smith v. M.V. Woods Constr. Co., 309 A.D.2d 1155, 1157, 764 N.Y.S.2d 749).   In any event, we conclude that the lease was properly delivered inasmuch as it was signed in the presence of both parties (cf. 219 Broadway Corp., 46 N.Y.2d at 512, 414 N.Y.S.2d 889, 387 N.E.2d 1205;  Kophen v. Cornell, 260 A.D.2d 914, 915, 688 N.Y.S.2d 826, lv. denied 93 N.Y.2d 811, 694 N.Y.S.2d 633, 716 N.E.2d 698).   Additionally, defendant paid a security deposit and the first month's rent, thereby manifesting an intent that an interest in property be conveyed (see Townhouse Co. v. Williams, 307 A.D.2d 223, 224, 763 N.Y.S.2d 560;  see generally 219 Broadway Corp., 46 N.Y.2d at 512, 414 N.Y.S.2d 889, 387 N.E.2d 1205).

 We further conclude that Supreme Court's determination that the premises were suitable for their intended use is not against the weight of the evidence.  “While it is well settled that this Court has the authority to independently consider the weight of the evidence on an appeal in a nonjury case, deference is still afforded to the findings of the [court] where, as here, they are based largely on credibility determinations” (Burton v. State of New York, 283 A.D.2d 875, 877, 726 N.Y.S.2d 481;  see Goncalves v. State of New York, 1 A.D.3d 914, 767 N.Y.S.2d 743;  Timmons v. State of New York, 256 A.D.2d 1163, 684 N.Y.S.2d 104).   We see no need to disturb the court's determination to credit the testimony of plaintiff's representative, who testified that the required improvements had been made to the premises.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: