Meehan v. Just Frank Realty, LLC

108 A.D.3d 657, 969 N.Y.S.2d 534

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 17, 2013
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of a lease, the defendant appeals from an order of the Supreme Court, Rockland County (Kelly, J.), entered December 2, 2011, which granted the plaintiff’s motion for summary judgment dismissing its counterclaims to the extent the counterclaims sought to recover damages in excess of the sum of $2,500.

Ordered that the order is affirmed, with costs.

Contrary to the defendant’s contentions, the Supreme Court properly granted the plaintiffs motion for summary judgment dismissing its counterclaims to the extent the counterclaims sought to recover damages in excess of the sum of $2,500. The plaintiff established her prima facie entitlement to judgment as a matter of law based on the provisions in the lease limiting the defendant’s recovery of liquidated damages, fees, and costs to the sum of $2,500 in the event of the plaintiffs breach or default (see generally Sommer v Federal Signal Corp., 79 NY2d 540, 553 [1992]; Mancuso v Rubin, 52 AD3d 580, 582-583 [2008]; Smith-Hoy v AMC Prop. Evaluations, Inc., 52 AD3d 809, 810-811 [2008]).

In opposition, the defendant failed to raise a triable issue of fact as to the existence of circumstances that would render the limitation of liability provisions of the parties’ lease unenforceable (see Vibar Constr., Inc. v Konetchy, 78 AD3d 819, 820 [2010]; Dazzo v Kilcullen, 56 AD3d 415, 416 [2008]; Smith-Hoy v AMC Prop. Evaluations, Inc., 52 AD3d at 811). Dillon, J.P., Angiolillo, Dickerson and Cohen, JJ., concur.