LD Acquisition Co. 9, LLC v. TSH Trade Grp., LLC

211 A.D.3d 928

181 N.Y.S.3d 284

LD ACQUISITION COMPANY 9, LLC, appellant,

v.TSH TRADE GROUP, LLC, et al., respondents.

2019-12345

Index No. 505182/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 7, 2022

December 21, 2022

Brach Eichler, L.P., New York, NY (Anthony M. Rainone and Lucas A. Markowitz of counsel), for appellant.

Joel M. Gluck, New York, NY, for respondent.

BETSY BARROS, J.P., VALERIE BRATHWAITE NELSON, CHERYL E. CHAMBERS, LILLIAN WAN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Debra Silber, J.), dated September 19, 2019. The judgment, insofar as appealed from, upon a decision of the same court (Miriam P. Sunshine, Ct. Atty. Ref.) dated March 28, 2019, made after an inquest on the issue of damages, failed to award the plaintiff any damages or attorney's fees.

ORDERED that on the Court's own motion, the notice of appeal from the decision is deemed to be a premature notice of appeal from the judgment (see CPLR 5520[c] ); and it is further,

ORDERED that the judgment is reversed insofar as appealed from, on the law, and the matter is remitted to the Supreme Court, Kings County, for a new inquest and determination on damages in accordance herewith and for the entry of an appropriate amended judgment thereafter; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In 2012, LD Holdings, LLC (hereinafter LD Holdings), and the defendant TSH Trade Group, LLC (hereinafter TSH), entered into an agreement that provided LD Holdings with an exclusive 30–year easement on the roof of certain property owned by TSH. The agreement entitled LD Holdings to sublease the easement to a telecommunications carrier for the installation of cell phone antennae. The agreement also provided that in any action commenced to enforce any provision of the agreement, the prevailing party would be entitled to an award of reasonable attorney's fees and costs.

In March 2018, the plaintiff, as successor in interest to LD Holdings, commenced this action against TSH and the defendant Thomas Hild, its managing member, seeking, inter alia, damages for breach of contract, a permanent injunction enjoining the defendants from interfering with the plaintiff's rights under the agreement, and an award of attorney's fees. The complaint alleged that on August 31, 2015, the existing sublease on the easement was terminated and that in January 2018, the plaintiff attempted to access the premises with a prospective new tenant, but Hild denied them entry, asserting that the plaintiff had abandoned its rights under the agreement. The complaint further alleged that the plaintiff sent the defendants a default notice on February 8, 2018, but access continued to be denied, and the plaintiff suffered damages due to the defendants’ wrongful interference with its easement rights, including loss of rental income and attorney's fees. The plaintiff obtained a temporary restraining order dated March 27, 2018, restraining the defendants from interfering with the plaintiff's easement rights.

The defendants did not appear or answer the complaint, and a default judgment was entered against them on September 27, 2018. The issue of damages was referred to a special referee for an inquest. After the inquest, the referee, in a decision dated March 28, 2019, found that the plaintiff failed to establish its entitlement to any damages because it did not establish that the breach of the parties’ agreement was the cause of its purported damages. In a judgment dated September 19, 2019, the Supreme Court, inter alia, granted a permanent injunction enjoining the defendants from interfering with the plaintiff's rights under the parties’ agreement, and failed to award the plaintiff any damages or attorney's fees. The plaintiff appeals from so much of the judgment as failed to award the plaintiff any damages or attorney's fees.

A defaulting defendant is "deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them" ( Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 71, 760 N.Y.S.2d 727, 790 N.E.2d 1156 ), "including the basic allegation of liability" ( Rokina Opt. Co. v. Camera King, Inc., 63 N.Y.2d 728, 730, 480 N.Y.S.2d 197, 469 N.E.2d 518 ...