Rosen v. 124 State Street Corp.

—In a mortgage foreclosure action, the plaintiff appeals from (1) a judgment of the Supreme Court, Kings County (Huttner, J.), entered March 21, 1990, which, inter alia, awarded the defendant the principal sum of $31,588.38 on its counterclaim, and (2) so much of an order of the same court dated December 5, 1990, as denied his motion, pursuant to CPLR 4404, to set aside the judgment and for a new trial. Ordered that the judgment is modified by reducing the amount of damages awarded from the principal sum of $31,588.38 to the principal sum of $30,988.38; as so modified the judgment is affirmed; and it is further, Ordered that the order is affirmed insofar as appealed from; and it is further, Ordered that the defendant is awarded one bill of costs. Contrary to the court’s determination, we find that the agreement dated March 13, 1984, did not impose any obligation on the plaintiff to repair the skylight cage. In consequence, the award of $600 damages to the defendant arising out of the plaintiff’s failure to repair the skylight cage was erroneous. However, we are satisfied that the remainder of the court’s judgment was consistent with the weight of the credible evidence presented at the trial (see, Strauf v Ettson Enters., 106 AD2d 737; Stempel v Rosen, 140 AD2d 326). Furthermore, we find that the court properly denied the plaintiff’s motion for a new trial (see, Delagi v Delagi, 34 AD2d 1005; Matter of Ballroom Prods. v Abrams, 96 AD2d 1099). Thompson, J. P., Rosenblatt, Lawrence and Santucci, JJ., concur.