Withers Bergman LP v Solus Alternative Asset Mgt. LP (2012 NY Slip Op 50842(U))

Withers Bergman LP v Solus Alternative Asset Mgt. LP

2012 NY Slip Op 50842(U) [35 Misc 3d 138(A)]

Decided on May 9, 2012

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Withers Bergman LP., Petitioner-Appellant,

against

Solus Alternative Asset Management LP, Respondent-Respondent.

Petitioner appeals, as limited by its briefs, from (1) those portions of an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered February 9, 2011, which denied its cross motion for summary judgment on its claims for liquidated damages and attorneys' fees in a holdover summary proceeding, and (2) so much of a final judgment (same court and Judge), entered February 10, 2011, as limited its recovery of use and occupancy to the principal sum of $387,716.86.

Final judgment (Peter H. Moulton, J.), entered February 10, 2011, modified by increasing petitioner's recovery of use and occupancy to the principal sum of $1,163,150.59, granting its motion for attorneys' fees, and remanding the matter to Civil Court for a hearing to determine the reasonable amount of such fees; as modified, final judgment affirmed, with $30 costs to petitioner-appellant. Appeal from order (Peter H. Moulton, J.), entered February 9, 2011, dismissed, without costs, as subsumed in the appeal from the aforesaid final judgment.

The liquidated damages clause set forth in the written license agreement between these sophisticated parties, permitting petitioner to recover three times the specified license fee in the event respondent failed to timely vacate the subject Park Avenue office premises, did not constitute an unenforceable penalty. The conclusory assertions set forth in respondent's counsel's affirmation, lacking any case-specific allegations, fell far short of meeting respondent's burden to establish that at the time the license agreement was entered into, the amount of anticipated damages was easily ascertainable, or that the liquidated amount was grossly disproportionate to the probable loss (see IMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 380 [2005]; Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 NY2d 420, 425 [1977]; 225 Fifth Ave. Retail LLC v 225 5th, LLC, 78 AD3d 440 [2010]; Tenber Assoc. v Bloomberg, L.P., 51 AD3d 573 [2008]).

Inasmuch as petitioner prevailed on the central issues litigated below, it was entitled to an award of attorneys' fees pursuant to paragraph 21 of the license agreement (see Duane Reade v 405 Lexington, LLC, 19 AD3d 179 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: May 09, 2012