Opinion
2013-07-17
Allison MEEHAN, etc., respondent, v. JUST FRANK REALTY, LLC, appellant.
Condon & Associates, PLLC, Nanuet, N.Y. (Laura M. Catina of counsel), for appellant. Ellen O'Hara Woods, Tappan, N.Y., for respondent.
Condon & Associates, PLLC, Nanuet, N.Y. (Laura M. Catina of counsel), for appellant. Ellen O'Hara Woods, Tappan, N.Y., for respondent.
MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and JEFFREY A. COHEN, JJ.
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 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. 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 plaintiff's breach or default ( see generally Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 553, 583 N.Y.S.2d 957, 593 N.E.2d 1365;Mancuso v. Rubin, 52 A.D.3d 580, 582–583, 861 N.Y.S.2d 79;Smith–Hoy v. AMC Prop. Evaluations, Inc., 52 A.D.3d 809, 810–811, 862 N.Y.S.2d 513).
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 A.D.3d 819, 820, 910 N.Y.S.2d 532;Dazzo v. Kilcullen, 56 A.D.3d 415, 416, 866 N.Y.S.2d 747;Smith–Hoy v. AMC Prop. Evaluations, Inc., 52 A.D.3d at 811, 862 N.Y.S.2d 513).