Opinion
Index No. 655408/2016
01-18-2023
862 Second Avenue LLC, Plaintiff, v. 2 Dag Hammarskjold Plaza Condominium et al., Defendants.
Paul Hastings LLP, New York, NY (Zachary Zwillinger of counsel), for plaintiff. Moulinos & Associates, New York, NY (Peter Moulinos of counsel), for defendant 2 Dag Hammarskjold Plaza Condominium.
Unpublished Opinion
Paul Hastings LLP, New York, NY (Zachary Zwillinger of counsel), for plaintiff.
Moulinos & Associates, New York, NY (Peter Moulinos of counsel), for defendant 2 Dag Hammarskjold Plaza Condominium.
Gerald Lebovits, J.
This motion arises out of an ongoing commercial landlord-tenant action brought by plaintiff, 862 Second Avenue LLC (862), against defendant 2 Dag Hammarskjold Plaza Condominium (2 Dag) and a number of 2 Dag's subtenants. In June 2021, this court granted 862's motion for partial summary judgment. (862 Second Ave. LLC v 2 Dag Hammarskjold Plaza Condominium, 2021 NY Slip Op 50563[U] [Sup Ct, NY County June 17, 2021].) This court held, among other things, that 862 is entitled to damages from 2 Dag stemming from 2 Dag's use and occupancy of the premises, and use of development rights associated with the property, after the parties' lease terminated in August 2016. (Id. at *3-*5.) The court referred the question of the amount of those damages to a special referee to hear and report. (Id. at *4-5, *6.) The Appellate Division, First Department, affirmed this court's order. (862 Second Ave. LLC v 2 Dag Hammarskjold Plaza Condominium, 205 A.D.3d 447 [2022].)
The issue of 862's post-termination damages was referred to Special Referee Hon. Elizabeth Shamahs, and calendared for a hearing before the referee beginning on January 23, 2023. At a pre-hearing conference on January 6, 2023, 2 Dag objected to 862's presentation of damages testimony from an expert witness that would, 2 Dag believed, rely on measures of damages that are not permitted under the lease. The referee directed 2 Dag to raise this objection by motion in limine, returnable before the undersigned. Three days later, on January 9, 2 Dag filed the current motion, returnable January 18, seeking to preclude the testimony of 862's expert. The motion is denied without prejudice
862 had served its expert witness's report on 2 Dag on December 16, 2022.
As an initial matter, 862 argues that the motion should be denied as untimely. That argument is unpersuasive. 862's expert report was served on December 16, 2022. 2 Dag raised the issue of admissibility of the expert's testimony only three weeks later-counting the end-of-year holidays-at the scheduled pre-hearing conference. And 2 Dag filed this motion only three days after the conference (as directed by the referee), setting a short return date. Although this motion has, of necessity, been briefed by the parties and considered by this court on a tight schedule, those constraints do not result from undue delay on 2 Dag's part.
Nonetheless, 2 Dag has not persuaded this court, in the matter's current procedural posture, to exclude the damages testimony of 862's expert-nor to opine, in advance, on whether the sources and measures of damages on which 862 plans to rely at the hearing are consistent with the underlying lease. This court did not participate in the parties' January 6 pre-hearing conference, has not heard the details of the damages case that 862 intends to put on, and has not even seen the report of 862's expert. In short, this court is ill-placed to render the evidentiary determination that 2 Dag is asking it to make.
The court concludes that the proper course is instead for 862's damages testimony to go forward on January 23 and January 24 as scheduled. Having heard that testimony, and the parties' arguments on its admissibility, the referee can determine whether the disputed damages testimony should come in (and, if so, what role it should play in her final conclusions). If either party then objects to the referee handling of 862's damages testimony, that party may raise the objection when briefing a post-hearing motion to confirm the referee's report, and this court will address that objection in deciding the motion to confirm.
As this court understands it, 862 is unable for scheduling and logistical reasons to present testimony from other witnesses besides its damages expert on January 23 and January 24. Even if the referee were ultimately to decide that testimony relating to that expert's opinion is inadmissible, the presentation of that testimony would not have used hearing time that could have been devoted to other matters.
This court's resolution of that objection in an order deciding the motion to confirm would be appealable as of right.
Accordingly, it is
ORDERED that 2 Dag's motion in limine is denied without prejudice.