        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1149
CA 16-00603
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.


CLEARVIEW FARMS LLC, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

SHAWN FANNON, DEFENDANT-RESPONDENT.


ANDREW J. DICK, ROCHESTER, FOR PLAINTIFF-APPELLANT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Monroe County (J. Scott Odorisi, J.), entered January 25, 2016.
The order and judgment denied the motion of plaintiff to set aside in
part the verdict.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: Plaintiff appeals from an order and judgment denying
its motion pursuant to CPLR 4404 (b) to set aside in part a verdict
rendered following a bench trial on plaintiff’s claim for breach of a
residential lease. By its verdict, Supreme Court awarded plaintiff
landlord the sum of $9,224.41, plus reasonable attorneys’ fees,
litigation costs and prejudgment interest, “less any amounts Plaintiff
collected from re-renting the subject apartment [during the original
lease term] as an offset credit to Defendant.” In denying the motion,
the court declined to delete that offset provision from its verdict.
Instead, upon plaintiff’s failure to submit a posttrial affidavit
“detailing all income/fees it collected from the new tenant as a
result of re-renting the subject property,” the court determined that
plaintiff had “failed to prove its damages and thus [was] not entitled
to monetary judgment against Defendant.”

     We conclude that the court did not err in determining as a matter
of law that the accelerated rent clause of the lease constituted an
“unenforceable penalty” and in concomitantly determining that
plaintiff’s recovery was appropriately “limited to actual damages
proven” (172 Van Duzer Realty Corp. v Globe Alumni Student Assistance
Assn., Inc., 24 NY3d 528, 536 [internal quotation marks omitted]),
notwithstanding that plaintiff was under no duty to mitigate in the
first place (see Holy Props. v Cole Prods., 87 NY2d 130, 134; see also
172 Van Duzer Realty Corp., 24 NY3d at 535). We likewise reject
plaintiff’s contention that the court had no basis for demanding that
plaintiff produce additional proof of actual damages, either at trial
or posttrial. The court merely afforded plaintiff a second chance to
prove its actual damages by means of a posttrial affidavit quantifying
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                                                         CA 16-00603

its relevant receipts from its new tenant and, to the extent that
there may have been some procedural irregularity here, that
irregularity did not prejudice plaintiff, the recipient of that second
chance. Finally, we conclude that the court did not err in ultimately
denying plaintiff any recovery of its actual damages in this case
based upon plaintiff’s failure to quantify and prove such actual
damages either at trial or by means of a posttrial affidavit.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
