vacated the premises; reduced rental income for the remainder of the lease term due to
having to relet the premises; broker fees paid in connection with the reletting; and
cleaning/repair cost. (See NYSCEF No. 59 at Tr. 3-4.) The jury found that
defendant had proven damages only with respect to one of those four categories. (See
id.) And the jury awarded only $4,800 in damages—less than a quarter of the
total damages that defendant has asserted on this cross-motion that it suffered.
(Compare NYSCEF No. 59 at Tr. 4, with NYSCEF No. 63 at ¶ 14
[aff. in support of cross-motion]. Thus, unlike in 55 Walker Street Condominium,
relied on here by defendant (see NYSCEF No. 63 at ¶ 43), the jury rejected,
rather than "validated[,] the theory of recovery in several categories," and granted
defendant only a small fraction of the relief requested, rather than "a substantial part." (6
AD3d at 280.) Given this outcome, defendant is not a prevailing party for attorney-fee
purposes.
Accordingly, it is
ORDERED that plaintiff's motion under CPLR 4404 to set aside the jury verdict and
for judgment in its favor as a matter of law is granted; and it is further
ORDERED that defendant's cross-motion for an appointment of a referee to hear and
determine the amount of an attorney-fee award to defendant is denied; and it is
further
ORDERED that plaintiff is awarded a judgment against defendant for $8,200, plus
costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill
of costs; and [*5]it is further
ORDERED that plaintiff serve a copy of this order with notice of its entry on
defendant; and on the office of the County Clerk (using the NYSCEF filing event
"Notice to the County Clerk - CPLR § 8019 (c)"), which shall enter judgment
accordingly.
DATE 4/17/2025