WE RE ASSOCIATES COMPANY v. RODIN SPORTSWEAR LTD

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

WE'RE ASSOCIATES COMPANY, Appellant, v. RODIN SPORTSWEAR LTD., Respondent.

Decided: November 26, 2001

GABRIEL M. KRAUSMAN, J.P., SONDRA MILLER, NANCY E. SMITH and STEPHEN G. CRANE, JJ. Hartman & Craven, LLP, New York, N.Y. (Victor M. Metsch and Glenn H. Spiegel of counsel), for appellant. Pennisi, Daniels & Norelli, LLP, Rego Park, N.Y. (Fred G. Daniels of counsel), for respondent.

In an action for a judgment declaring that the plaintiff timely exercised its option to terminate a lease, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Jonas, J.), dated March 26, 2001, which, after a nonjury trial, declared that the plaintiff did not validly terminate the lease, and dismissed the complaint.

ORDERED that the judgment is reversed, on the law and the facts, with costs, and it is declared that the appellant timely exercised its option to terminate the lease.

 “On an appeal from a judgment rendered after a nonjury trial, this Court's standard of review is not limited to whether the trial court's verdict is against the weight of the evidence.   This Court may ‘review * * * the record as a whole and * * * grant the judgment warranted’ ” (Ancewicz v. Western Suffolk BOCES, 282 A.D.2d 632, 730 N.Y.S.2d 113, quoting Matter of Hall v. Barnes, 225 A.D.2d 837, 839, 639 N.Y.S.2d 151).   Our scope of review is as broad as that of the trial court (see, Lozada v. State of New York, 267 A.D.2d 215, 700 N.Y.S.2d 38;  U.S. No. 1 Laffey Real Estate v. Hanna, 215 A.D.2d 552, 627 N.Y.S.2d 54).

 Upon a review of the record, we find that the evidence supports the conclusion that the appellant landlord met its burden of proof.   Pursuant to Paragraphs 34 and 49 of the commercial lease between the appellant and the respondent tenant, the appellant had the right to terminate the lease before the end of its term provided that the appellant sent a notice of termination by certified mail on or before March 31, 2000.   The evidence overwhelmingly established that the appellant sent the notice of termination by certified mail on March 15, 2000.   Indeed, the appellant was assisted in sustaining its burden by a preponderance of the credible evidence by a presumption of mailing (see, Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 414 N.Y.S.2d 117, 386 N.E.2d 1085;  Bossuk v. Steinberg, 58 N.Y.2d 916, 919, 460 N.Y.S.2d 509, 447 N.E.2d 56 [no need to produce who did actual mailing];  Spangenberg v. Chaloupka, 229 A.D.2d 482, 483, 645 N.Y.S.2d 514 [office procedure followed in the regular course of business not shown to have been violated, and thus sufficed to establish mailing];  cf., Rhulen Agency v. Gramercy Brokerage, 106 A.D.2d 725, 484 N.Y.S.2d 156).   Accordingly, it is declared that the appellant timely exercised its option to terminate the lease.

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