Opinion
2012-07-11
In the Matter of Abraham NEUSTEIN, deceased. (Matter No. 1) Amy Neustein, respondent-appellant, v. Estate of Abraham Neustein, et al., appellants-respondents. (Matter No. 2).
Goldberg & Rimberg, PLLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and Naomi M. Taub], of counsel), for appellants-respondents. Julia P. Heit, New York, N.Y. (Michael P. Heit of counsel), for respondent-appellant.
Goldberg & Rimberg, PLLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and Naomi M. Taub], of counsel), for appellants-respondents. Julia P. Heit, New York, N.Y. (Michael P. Heit of counsel), for respondent-appellant.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and SANDRA L. SGROI, JJ.
In a probate proceeding and a related action, inter alia, pursuant to RPAPL article 15 to compel the determination of claims to real property, to recover damages, and for ejectment, wrongful eviction, and injunctive relief, which was transferred from the Supreme Court, Kings County, to the Surrogate's Court, Kings County, and joined with the probate proceeding for disposition, the appeal is from so much of a judgment of the Surrogate's Court, Kings County (Johnson, S.), dated March 1, 2011, as, upon a decision of the same court dated September 13, 2010, made after a nonjury trial, is in favor of Amy Neustein and against Joshua Neustein in the sum of $774,300, and Amy Neustein cross-appeals, as limited by her brief, from so much of the same judgment as awarded her damages in the sum of only $774,300.
ORDERED that the appeals by the Estate of Abraham Neustein and Frima Burger are dismissed, as those parties are not aggrieved by the judgment appealed from ( seeCPLR 5511); and it is further,
ORDERED that the judgment is affirmed insofar as appealed from by Joshua Neustein and insofar as cross-appealed from, without costs or disbursements.
“In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and we may render a judgment we find warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses” ( Marini v. Lombardo, 79 A.D.3d 932, 933, 912 N.Y.S.2d 693;see Campbell v. Campbell, 50 A.D.3d 614, 854 N.Y.S.2d 543).
Contrary to the contentions of Joshua Neustein, a defendant in Matter No. 2 (hereinafter Joshua), the Surrogate properly awarded damages to the plaintiff in that matter (hereinafter the plaintiff) for the value of the rent of the subject real property while the property was wrongfully withheld from her ( seeRPAPL 601; Cassata v. New York New England Exch., 250 A.D.2d 491, 492, 673 N.Y.S.2d 124;see also Baker v. Drake, 53 N.Y. 211;Maracina v. Shirrmeister, 105 A.D.2d 672, 673, 482 N.Y.S.2d 14;Miceli v. Riley, 79 A.D.2d 165, 436 N.Y.S.2d 72;Matter of Rothko, 56 A.D.2d 499, 502–503, 392 N.Y.S.2d 870,affd.43 N.Y.2d 305, 401 N.Y.S.2d 449, 372 N.E.2d 291;Crawford v. Town of Hamburg, 19 A.D.2d 100, 101, 241 N.Y.S.2d 357;Industrial Dev. Found. of Auburn N.Y. v. United States Hoffman Mach. Corp., 16 A.D.2d 600, 601–602, 229 N.Y.S.2d 857;Rae v. Sutbros Realty Corp., 6 A.D.2d 716, 174 N.Y.S.2d 871,affd.6 N.Y.2d 963, 191 N.Y.S.2d 163, 161 N.E.2d 389;Deering v. Reilly, 38 A.D. 164, 173–174, 56 N.Y.S. 704,affd.167 N.Y. 184, 60 N.E. 447;cf. Reads Co., LLC v. Katz, 72 A.D.3d 1054, 1056, 900 N.Y.S.2d 131). The Surrogate also properly trebled a portion of the damages ( seeRPAPL 853; Moran v. Orth, 36 A.D.3d 771, 828 N.Y.S.2d 516;Rocke v. 1041 Bushwick Ave. Assoc., 169 A.D.2d 525, 564 N.Y.S.2d 379;Lyke v. Anderson, 147 A.D.2d 18, 24, 541 N.Y.S.2d 817;Bianchi v. Hood, 128 A.D.2d 1007, 513 N.Y.S.2d 541;cf. Golonka v. Plaza at Latham, 270 A.D.2d 667, 670, 704 N.Y.S.2d 703;ZCWK Assoc. v. Spadaro, 233 A.D.2d 126, 649 N.Y.S.2d 425). In addition, the award of damages was based on competent evidence ( see Goldstein v. Held, 63 A.D.3d 881, 881 N.Y.S.2d 471).
We decline to disturb the Surrogate's determination that the plaintiff was not entitled to damages based on the purported loss in sale value of the property ( see Marvin v. Prentice, 94 N.Y. 295, 301;North Main St. Bagel Corp. v. Duncan, 37 A.D.3d 785, 786, 831 N.Y.S.2d 239;Long Is. Airports Limousine Serv. Corp. v. Northwest Airlines, 124 A.D.2d 711, 508 N.Y.S.2d 223).
Joshua's remaining contentions are without merit.