MADISON 68 CORP v. MALPASS

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

MADISON-68 CORP., Plaintiff-Appellant, v. David MALPASS, et al., Defendants-Respondents.

Decided: August 11, 2009

MAZZARELLI, J.P., ANDRIAS, NARDELLI, DeGRASSE, ABDUS-SALAAM, JJ. Belkin Burden Wenig & Goldman, LLP, New York (Edward Baer of counsel), for appellant. Tarter Krinsky & Drogin LLP, New York (Debra Bodian Bernstein of counsel), for respondents.

Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered April 11, 2008, after a nonjury trial, awarding plaintiff the sum of $15,500 with interest from July 1, 2004, costs and disbursements, and which brings up for review an order of the same court and J.H.O., entered March 17, 2008, which, inter alia, denied plaintiff's motion to set aside the trial and restore the case to the trail calendar, and granted defendants' counterclaim for attorneys' fees, unanimously modified, on the law, to the extent that the award of attorneys' fees to defendants is vacated, and otherwise affirmed, without costs.

 Plaintiff's objection, made under the best evidence rule, to the admission of the lease rider was properly overruled because it had offered into evidence a copy of the same document.   The J.H.O. at times cut off questioning, but did so in an evenhanded manner to expedite the trial, never amounting to prejudicial error (see Lewis v. Port Auth. of N.Y. & N.J., 8 A.D.3d 205, 206, 779 N.Y.S.2d 479 [2004] ).   Nor was the judgment against the weight of the evidence, since the case essentially turned on the parties' competing oral testimony.   The issue of the prevailing party notwithstanding, it was error for the J.H.O. to determine that defendants were entitled to an award of attorneys' fees.   In Oxford Towers Co., LLC v. Wagner, 58 A.D.3d 422, 872 N.Y.S.2d 431 [2009], this Court held that an identical lease provision was not covered by Real Property Law § 234.