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

408
CA 15-01088
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ.


VLADIMIR A. SUPRUNCHIK, PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

SALVATORE VITI, A-1 AUTO PARTS, INC. AND S. VITI
REALTY CORP., DEFENDANTS-RESPONDENTS.


DAVID G. GOLDBAS, UTICA, FOR PLAINTIFF-APPELLANT.

GUSTAVE J. DETRAGLIA, JR., UTICA, FOR DEFENDANTS-RESPONDENTS.


      Appeal from a judgment of the Supreme Court, Oneida County
(Patrick F. MacRae, J.), entered April 8, 2015. The judgment, among
other things, awarded plaintiff the sum of $27,000 on his wrongful
eviction cause of action and awarded defendant S. Viti Realty Corp.
the sum of $12,000 on its counterclaim against plaintiff for lost
rent.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by striking from the fifth decretal
paragraph the phrase “Defendant, Salvatore Viti, personally” and
substituting therefor the word “defendants” and by striking from the
sixth decretal paragraph the phrase “months of August, September,
October, and November 2008 for a total of $12,000.00 (Twelve Thousand
Dollars)” and substituting therefor the phrase “month of August 2008
for a total of $3,000,” and as modified the judgment is affirmed
without costs.

     Memorandum: Plaintiff commenced this action against defendant
Salvatore Viti (Viti) and Viti’s corporations, defendants A-1 Auto
Parts, Inc. and S. Viti Realty Corp. (Realty) (collectively, corporate
defendants), alleging causes of action for, inter alia, breach of
contract and wrongful eviction. According to plaintiff, defendants
repudiated a written asset purchase agreement and then unlawfully
ousted him from the leased property on which he operated a junkyard
business. Following a bench trial, Supreme Court granted judgment in
favor of plaintiff only on the cause of action for wrongful eviction,
and plaintiff contends on appeal that the court erred in dismissing
the cause of action for breach of contract. We reject that
contention. The decision of a court following a nonjury trial should
not be disturbed on appeal “unless it is obvious that the court’s
conclusions could not be reached under any fair interpretation of the
evidence, especially [where, as here,] the findings of fact rest in
large measure on considerations relating to the credibility of
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                                                         CA 15-01088

witnesses” (Thoreson v Penthouse Intl., 80 NY2d 490, 495, rearg denied
81 NY2d 835 [internal quotation marks omitted]). Viewing the evidence
in the light most favorable to sustain the judgment (see A&M Global
Mgt. Corp. v Northtown Urology Assoc., P.C., 115 AD3d 1283, 1286), we
conclude that there is a fair interpretation of the evidence
supporting the court’s determination that plaintiff was not ready,
willing and able to fulfill his contractual obligations at closing
(see generally Pesa v Yoma Dev. Group, Inc., 18 NY3d 527, 531-532;
3801 Review Realty LLC v Review Realty Co. LLC, 111 AD3d 509,
509-510). Thus, contrary to plaintiff’s contention, he is not
entitled to recover damages for breach of contract (see Pesa, 18 NY3d
at 532).

     We reject plaintiff’s further contention that the court erred in
failing to award him lost profits and other actual damages arising
from the wrongful eviction. “The measure of compensatory damages for
wrongful eviction is the value of the unexpired term of the lease over
and above the rent the lessee must pay under its terms . . . ,
together with any actual damages flowing directly from the wrongful
eviction” (Long Is. Airports Limousine Serv. Corp. v Northwest
Airlines, 124 AD2d 711, 712; see North Main St. Bagel Corp. v Duncan,
37 AD3d 785, 786; Matter of Marina Bay Club v Cannizzaro, 105 AD2d
1114, 1114). “Although loss of profits may be an element of recovery
in a wrongful eviction action . . . , the loss must be ascertainable
with a reasonable degree of certainty and may not be based on
conjecture” (Long Is. Airports Limousine Serv. Corp., 124 AD2d at 713;
see North Main St. Bagel Corp., 37 AD3d at 786). Here, plaintiff’s
claims with respect to lost profits are speculative and insufficient
to establish such damages with the requisite degree of reasonable
certainty (see Long Is. Airports Limousine Serv. Corp., 124 AD2d at
713), and plaintiff failed to prove any other actual damages allegedly
flowing from the wrongful eviction.

     We agree with plaintiff, however, that the court erred in finding
that Viti, the corporate defendants’ sole shareholder, director and
officer, was not acting on behalf of the corporate defendants when he
unlawfully ousted plaintiff from the property (see 14 NY Jur 2d,
Business Relationships § 497; see generally O’Donnell v K-Mart Corp.,
100 AD2d 488, 491). We thus conclude that the award of wrongful
eviction damages for the value of the leasehold, which was
appropriately trebled in this case pursuant to RPAPL 853 (see e.g.
Moran v Orth, 36 AD3d 771, 773), should also have been entered against
the corporate defendants. We therefore modify the judgment
accordingly. Inasmuch as the corporate defendants are liable for the
wrongful eviction, we further agree with plaintiff that the court
erred in awarding Realty unpaid rent on its counterclaim against
plaintiff for those months during which it had wrongfully evicted
plaintiff. We therefore further modify the judgment accordingly.



Entered:   May 6, 2016                          Frances E. Cafarell
                                                Clerk of the Court
