Sharper Properties Enterprises, Inc. v. Hubbard Sand & Gravel, Inc.

52 A.D.3d 681, 858 N.Y.S.2d 899

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 2008
• Status: Published

Opinion

In an action, inter alia, for a judgment declaring that the defendant effected an actual, partial eviction of the plaintiff from certain premises in violation of a lease and to recover damages for trespass and injury to the premises, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Emerson, J.), entered April 5, 2007, which, after a nonjury trial, awarded only nominal damages for trespass in the sum of $1 and, in effect, awarded $0 damages for injury to the premises.

Ordered that the judgment is modified, on the law, by adding a provision thereto declaring that the defendant effected an actual, partial eviction of the plaintiff from the leased premises; as so modified, the judgment is affirmed insofar as appealed from, with costs to the defendant.

The Supreme Court properly awarded only nominal damages of $1 since the plaintiff failed to establish the proper measure of its damages for actual partial eviction (see Long Is. Airports Limousine Serv. Corp. v Northwest Airlines, 124 AD2d 711 [1986]).

The plaintiffs remaining contentions are without merit.

Since this is, in part, a declaratory judgment action, the Supreme Court, Suffolk County, should have included in the judgment appealed from an appropriate declaration in favor of the plaintiff (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Florio, J.P, Angiolillo, Garni and Belen, JJ., concur.