WG Three Assoc., LLC v. Portofino Chelsea, LLC

WG Three Assoc., LLC v Portofino Chelsea, LLC (2020 NY Slip Op 00548) WG Three Assoc., LLC v Portofino Chelsea, LLC 2020 NY Slip Op 00548 Decided on January 28, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on January 28, 2020 Friedman, J.P., Webber, Kern, González, JJ. 10903 150739/17 [*1]WG Three Associates, LLC, Plaintiff-Appellant, v Portofino Chelsea, LLC, et al., Defendants-Respondents. Gordon & Gordon, P.C., Brooklyn (Jason S. Matuskiewicz of counsel), for appellant. Norman A. Olch, New York, for respondents. Appeal from order, Supreme Court, New York County (Andrew Borrok, J.), entered on or about August 10, 2018, after a nonjury trial, deemed appeal from judgment, same court and Justice, entered August 17, 2018, in defendant's favor, and, so considered, said judgment unanimously affirmed, without costs. The trial court's determination that plaintiff landlord unreasonably withheld its consent to defendant tenant's proposed assignment of the lease is supported by the evidence that plaintiff offered to lease the premises directly to the proposed assignee at a higher rent. Plaintiff also failed to present evidence substantiating its claim that it rejected the assignment because the proposed assignee was not financially capable of assuming the lease (see New Stadium LLC v Greenpoint-Goldman Corp., 44 AD3d 449 [1st Dept 2007]). Contrary to plaintiff's contention, defendants are entitled to damages for the amounts paid after plaintiff unreasonably withheld its consent to the assignment (see Arlu Assoc. v Rosner, 14 AD2d 272, 275 [1st Dept 1961], affd 12 NY2d 693 [1962]; see also 406 Broome St Rest Inc. v Lafayette Ctr., LLC, 149 AD3d 598 [1st Dept 2017]). We have considered plaintiff's remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: JANUARY 28, 2020 CLERK