Capogrosso v. Reade Broadway Associates
August 31, 2010
(Supreme Court, NY County, 12/11/06)
Following trial on commercial tenant’s claims that landlord breached the parties’ lease and constructively evicted plaintiff by failing to provide adequate electricity, heat, security and cleaning services, tenant found liable to landlord for $216,075.40 for rent and broker fees, on landlord’s counterclaim to recover as damages accelerated rent due under the lease and the damages that allegedly flowed from the breach including legal fees and costs, and matter sent to referee to determine attorneys’ fees and costs owing from tenant to landlord. Plaintiff claimed at trial that the electric outlets in the space were inadequate and that the landlord breached its agreement to improve the electrical outlets — but such was barred by the lease provision which indicates she is not entitled to any setoff or reduction in rent because of the landlord’s failure to comply with the covenant to repair the premises, and, in any event, Plaintiff’s testimony about this issue was not credible. Plaintiff was a practicing attorney and her allegation seemed doubtful that she and the landlord would enter into an agreement for the landlord to do electrical work without there being some clear written record of that arrangement. Her allegations were also belied by the work letter attached to the lease. Therefore, absent a specific promise by the landlord to enhance the electrical system to accommodate the amount of equipment plaintiff had, no basis existed to conclude that the landlord breached its obligations under the lease in connection with the provision of electrical service. Plaintiff’s cause of action for constructive eviction based on the landlord’s failure to provide adequate heat and cleaning services could not be maintained because plaintiff did not abandon the premises and continued to use them for their intended purpose until after defendant obtained a judgment awarding it possession. Even after judgment was obtained against her, plaintiff sought and obtained a stay of execution of that judgment of possession and plaintiff remained in the space for over a month paying the landlord use and occupancy. Plaintiff’s request to remain in the space even after the eviction, and her request that her subtenants also be allowed to remain for at least a brief period of time, could hardly be reconciled with her claim that the space was virtually unusable as a law office and unfit for business purposes. Moreover, Plaintiff failed to prove any damages — she did not provide any proof at trial that she turned work away because she was too busy dealing with the landlord, or that-she would have been able to obtain a sufficient number of clients to fill up all the hours that she allegedly spent on her lease related issues. Plaintiff did not provide any proof that a single client refused to come to her firm, or failed to return because of the conditions in her office. She did not call any witnesses to corroborate that her staff refused to work there, which might have affected her income, or to testify that they called in sick because of the conditions, including the alleged cold, in the office. She did not introduce any contemporaneous time records to document how many hours she spent on these matters and it seemed to the Court that her claim that she spent 80 hours writing or contacting the landlord was based on nothing more than a guess. Nor did plaintiff establish the value of any diminution in her leasehold due to the lack of heat and the poor cleaning services. Although the Court accepted plaintiff’s testimony that there was not someone regularly providing security or signing people in and out of the building, she did not point to any obligation in the lease for the landlord to provide such services. Her suggestion that the downtown location of this building created an implied obligation to provide security, especially after September 11, was unpersuasive and would, if accepted, extend to every landlord in the area. Because landlord prevailed on its counterclaim for unpaid rent it was entitled to its attorney’s fees, costs and disbursements incurred in this proceeding. Link to Full Text of Decision
