Iken v. Bohemian Brethren Presbyt. Church

Iken v Bohemian Brethren Presbyt. Church 2026 NY Slip Op 05909 October 13, 2026 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Monica Iken, et al., Plaintiffs-Respondents, v Bohemian Brethren Presbyterian Church, Defendant-Appellant. Decided and Entered: October 13, 2026 Index No. 654614/17|Appeal No. 7216-7216A,7216B,7216C,7216D|Case No. 2025-05827| Before: Moulton, J.P., Scarpulla, Michael, Hagler, JJ. McLaughlin & Stern, LLP, New York (Charles F. Kellett of counsel), for appellant. Law Offices of Jonathan E. Neuman, Fresh Meadows (Jonathan E. Neuman of counsel), for respondents. [*1] Judgment, Supreme Court, New York County (Joel M. Cohen, J.), entered August 20, 2025, after a jury trial, awarding plaintiffs Monica Iken and Ordinary Faces LLC the amount of $1,216,177.36, and bringing up for review (1) an order, same court and Justice, entered on or about May 16, 2025, which denied the landlord's motion under CPLR 4404 to set aside the verdict; (2) an order, same court and Justice, entered on or about November 12, 2024, which denied defendant's motion to strike plaintiffs' jury demand; (3) an order, same court and Justice, entered on or about December 3, 2024, to the extent the order denied renewal of defendant's motion to strike the jury waiver; and (4) an order, same court and Justice, entered on or about December 19, 2024, which denied defendant's motion in limine to preclude Iken from testifying about her status as a 9/11 widow, unanimously affirmed, without costs. "A determination that a verdict was based on legally insufficient evidence requires a finding that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial" (Rivera v 4064 Realty Co., 17 AD3d 201, 202-203 [1st Dept 2005], lv denied 5 NY3d 713 [2005] [internal quotation marks omitted]). Defendant failed to satisfy this heavy burden. The evidence adduced from plaintiffs' testimony and the parties' joint trial exhibits established that defendant breached its duties (1) under section 18(a) of the parties' lease to cooperate with plaintiffs to obtain the necessary approvals for the operation of the preschool by failing to file the paperwork necessary to clear violations issued by the New York City Department of Buildings (DOB) related to a defunct dumbwaiter shaft, and (2) under the lease rider to act "expeditiously and diligently" to assist plaintiffs with the installation of a fire alarm system. The undisputed evidence at trial showed that the lack of a functional fire alarm system was the reason DOB denied plaintiff's initial application for a letter of no objection (LNO) needed to operate a preschool. Further, the FDNY did not sign off on the fire alarm system until July 26, 2016, nearly two years after the lease was signed. The evidence also supported plaintiffs' assertion that the DOB violations relating to the elevator prevented plaintiffs from obtaining the LNO. Considering that the violations were issued against portions of the building that were not included in the demised premises, it was defendant's obligation to cure them. [*2] Defendant's argument that there is no evidence that plaintiffs were unable to obtain the necessary LNO because of the violations is refuted by the joint trial exhibits and trial testimony. The DOB training module submitted as a joint trial exhibit expressly states that an LNO request generally will be denied if there are active violations, which Iken testified was the only remaining obstacle to obtaining a permanent LNO for the preschool. For its part, defendant failed to present evidence that plaintiffs could have obtained an LNO that would run for the duration of the preschool's two-year license period while the violations remained uncured. Indeed, defendant's treasurer and church elder, Deborah Ann Widerkehr, testified that defendant never complied with plaintiffs' request to have its elevator company file the paperwork necessary to clear the violation. Aside from the two letters defendant wrote to the DOB stating that there was no elevator in the building and asking that the violations be cleared, there is no evidence that defendant took any other steps to cure the violations, establishing their breach of section 18(a). Defendant's assertion that the sole remedy under the lease rider for any delay was the 50% rent abatement from January through August 2015 that plaintiffs received is unavailing. Nothing in the rider's provision that both parties were required to "act expeditiously and diligently to obtain the proper permits, commence the work necessary to install the proper fire alarm system and obtain inspections and sign-offs" stated that the abatement was the exclusive remedy if defendant continued to fail to cooperate in plaintiffs' efforts to secure the fire alarm system (see Biotronik A.G. v Conor Medsystems Ireland, Ltd., 22 NY3d 799, 805 [2014] [rejecting argument that lost profits were unavailable because "[t]he limitations provision does not specifically preclude recovery for lost profits"]). Defendant's challenge to the jury's lost profit award is also unavailing. Plaintiffs submitted competent evidence showing that that (1) "the damages [were] caused by the breach, (2) the extent of the loss is capable of proof with reasonable certainty, and (3) . . . the damages were fairly within the contemplation of the parties" (id. at 806 [internal quotation marks omitted]). Specifically, the joint exhibits and testimony established that (1) plaintiffs were unable to operate the preschool as a direct result of the landlord's breaches of the lease and rider; (2) the losses were calculable based on data from a preschool that had previously operated in the same location for nearly 40 years and the tenant's first-year profits corresponded to the projections; and (3) the profits were within the parties' contemplation based on plaintiffs' business plan, prepared at defendant's request. [*3] Defendant's contention that the claimed lost profits were not supported by expert testimony or that Iken failed to lay a foundation for profits generated by the preschool that previously occupied the premises ignores Iken's testimony that defendant itself provided those operating figures to her, a fact which could have persuaded the jury that the numbers were acceptable to defendant. Plaintiffs observe that the award of $734,353 approximates 2.5 years of anticipated profits based on the projections in the joint trial exhibit. Thus, plaintiffs' lost profits were estimated "with the requisite degree of reasonable certainty" (Kenford Co. v County of Erie, 67 NY2d 257, 261 [1986]). Significantly, defendant failed to present any countervailing evidence to show that plaintiffs' 2016 profits were an aberration or any other evidence with respect to lost profits that would render these figures speculative. Section 19 of the lease, which provided that "Tenant shall look only and solely to Landlord's estate and interest in and to the Building and the rents and profits therefrom for the satisfaction of any right of Tenant arising out of this Lease or for the collection of judgment," and no other "property or assets" of defendant, did not preclude a damages award for plaintiffs after defendant's sale of the building. Similar clauses have been interpreted to permit parties to pursue real property sales proceeds, which reflect the seller's equity in the property (see City of New York v Evanston Ins. Co., 165 AD3d 1032, 1035 [2d Dept 2018]; Won's Cards v Samsondale/Haverstraw Equities, 165 AD2d 157, 164 [3d Dept 1991]). Defendant presented no evidence that the jury award exceeds its profits from the 2019 sale. Defendant's motion to strike the jury demand was properly rejected. The jury waivers in the lease were raised for the first time four months after plaintiffs filed their note of issue, and well after defendant's counsel had represented on the record that there was "[n]o disagreement about the right to a jury trial." Under the circumstances, the court reasonably determined that the jury waiver had been waived (see e.g. Sapp v Propeller Co. LLC, 12 AD3d 218, 219 [1st Dept 2004]). Finally, there is no basis to set aside the verdict or to direct a new trial based on Iken's testimony relating to her husband's death in the September 11, 2001 attacks. Defendant acknowledges that none of the questions posed by plaintiffs' counsel directly mentioned his death, and the brief, unsolicited testimony was directly related to how she came to obtain the donated fire alarm system. Further, although defendant made a motion in limine to exclude this testimony, its counsel did not object at trial. In any event, given the weight of evidence supporting the verdict, the "isolated" statements were "not the type of comments that could have deprived defendant of a fair trial" (Nieves v Riverbay Corp., 95 AD3d 458, 459 [1st Dept 2012]). [*4] We have considered defendant's remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: October 13, 2026