Power Test Petroleum Distributors, Inc. v. Marche , 110 A.D.2d 893 ( 1985 )

In this action to recover damages in connection inter alia, with defendant Louis La Marche’s alleged renting or leasing of eight gasoline stations from plaintiffs, plaintiffs failed to prove the amount of rent owed on the Francis Lewis Boulevard station (cf. Martin Delicatessen v Schumacher, 52 NY2d 105; Reisler v 60 Gramercy Park N. Corp., 88 AD2d 312, 317). Nor did plaintiffs adequately prove an amount to which they might be entitled for reasonable use and occupancy of the premises. Hence, the amount awarded as rent for the Francis Lewis Boulevard station, i.e., $5,162.93, must be stricken. Similarly, plaintiffs failed to establish defendant Louis La Marche’s liability for maintenance charges sought in connection with the Francis Lewis Boulevard station ($976.31), and the Long Island City station ($57.83). Consequently, the judgment should also be reduced by the amounts recovered for maintenance at these two stations. Defendant Louis La Marche’s remaining arguments have been reviewed and have been found to lack merit.

With respect to defendant Celeste La Marche’s appeal, the trial court correctly noted that it was unnecessary to resettle the judgment to provide that an order of attachment against her property be annulled. Pursuant to CPLR 6224, the order of attachment against defendant Celeste La Marche’s property was annulled upon the entry of judgment in her favor. Finally, under the circumstances, the determination that costs or disbursements should not be awarded to defendant Celeste La Marche (CPLR 8101) was appropriate. Lazer, J. P., Mangano, Bracken and Niehoff, JJ., concur.