M&E Christopher LLC v. Lima's Taste Ceviche Bar, Inc.

Rosenberg and Estis, P.C. successfully represented the petitioner, M&E Christopher LLC ("Petitioner" or "M&E"), in securing a judgment against the respondent, Lima's Taste Ceviche Bar, Inc. ("Respondent"), after a commercial non-payment trial. The final judgment in favor of the Petitioner granted possession of the property as well as a money judgment for rent arrears in the amount of $437,961.98, including interest and late fees. The Court determined that M&E was the prevailing party and awarded attorneys' fees to be determined at a hearing.

Petitioner commenced this non-payment proceeding to recover the rent arrears, late charges and interest charges which the Respondent had failed to pay. Although the Respondent did not dispute the Rent Arrears, it challenged M&E's right to recover late charges and interest, as well as the proper calculation of same, which comprised $85,622.42 of the $437,961.98 awarded. M&E had unsuccessfully sought to establish its right to the late charges and interest with prior counsel. Respondent further claimed that it had been constructively evicted from a portion of its basement storage space, such that it was entitled to a set-off against the unpaid rent.

Because Respondent had so vigorously defended M&E's prior attempts to recover the Rent Arrears, together with the substantial late charges and interest, Rosenberg & Estis, P.C. worked extensively with M&E to ensure that the methodology employed for calculation of the late charges and interest would survive scrutiny by the Court and that M&E's witness could clearly and accurately testify as to those calculations. It was the extensive trial preparation that lead to R&E's successful prosecution of M&E's claims for the late charges and interest.

Judge Cannataro awarded M&E the full amount it sought at trial and rejected the Respondent's defense that it was constructively evicted, finding that Respondent had acquiesced to the alleged taking of a portion of the basement space by virtue of its failure to object to the alleged modifications to its space at the time they took place. In evaluating Respondent's case, the Court found that Respondent was also unable to substantiate the actual amount by which its basement space was purportedly reduced or the value of the reduction in space. Therefore, even if the Court credited Respondent's testimony as to constructive eviction, the failure to substantiate its damages was fatal to its claim. Lastly, the Court observed that the testimony adduced would have more appropriately supported an actual eviction defense, which was not pleaded.

(Civil Court, New York County, Decided 04/12/2016)
(Rosenberg & Estis, P.C. Team: Deborah E. Riegel and Joseph Goljan)