Wasserman v. NRG Realty Corp.

Order, Supreme Court, New York County (Peter J. McQuillan, J.), entered December 12, 1984, which, inter alia, granted plaintiff’s motion for summary judgment, and the judgment of the same court and Justice, entered thereon on March 8, 1985, which awarded plaintiff the sum of $11,210, inclusive of interest, affirmed, with costs and disbursements.

In our view, Special Term properly found that the defendant landlord violated the terms of the lease by unreasonably withholding its consent to a subletting of the subject apartment pursuant to the terms of the lease. We also agree that plaintiff was damaged in the sum of $9,500, representing the amount that the proposed sublessees were prepared to pay plaintiff for her fixtures.

While agreeing with the determination that defendant is liable for its unjustified rejection of the proposed subletting, our dissenting colleague finds issues of fact as to the value of the fixtures that were to be sold and as to whether they were fixtures, or, in fact, improvements which remain the property of the landlord. Accordingly, he would remand for an assessment of damages. The claim that improvements were included in the sale of fixtures was never raised at Special Term either on the original motion or the motion for only the value of the fixtures, claiming that the $9,500 to be paid therefor was, in reality, "key money”, or a subterfuge for the charge of a higher rental, to which, pursuant to the terms of the lease, it, and not plaintiff, was entitled. Having failed at Special Term to raise this issue, which is purely factual, defendant may not raise it for the first time on appeal. (First Intl. Bank v Blankstein & Son, 59 NY2d 436.)

Furthermore, the actual value of the fixtures which were to be sold as part of the proposed subletting is not the measure of plaintiff’s damages. Plaintiff sues, not for the loss of the fixtures, in which case value would be the measure, but for the loss of the sale. There is no question that she had a buyer ready, willing and able to purchase the fixtures at the agreed-upon price. After frustrating the sale, defendant cannot now deprive plaintiff of the benefit of her bargain by a challenge to the fair market value of each and every item. Interestingly, on the renewed motion, defendant did not challenge the itemization of fixtures included in the sale, only their value. Its argument was that they were virtually worthless. In an action to recover damages because of interference with contractual relations the tort-feasor is liable for "the full pecuniary loss of the benefits of the contract with which [it] interfered”. (Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, 197; see also, Restatement [Second] of Torts § 774A [1] [a].) Concur — Sullivan, J. P., Carro, Asch and Rosenberger, JJ.