Sadov Realty Corp. v. Shipur H'Shechuna Corp.

Mar 1, 1994
Versions:202 A.D.2d 178
608 N.Y.S.2d 204

—Order and judgment (one paper), Supreme Court, Kings County (Julius Vinik, J.), entered on or about August 2, 1991, which, after a *179nonjury trial, inter alia, directed defendants to account to plaintiff for their management of the subject premises for the period beginning six years prior to commencement of the action, unanimously affirmed, without costs.

"On a bench trial, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnessess.” (Claridge Gardens v Menotti, 160 AD2d 544, 544-545.) Upon review of the record, we find that a fair interpretation of the evidence supports the finding that defendant Fischer did not acquire title to the stock in plaintiff realty corporation, the owner of the subject premises, from Chaikel Chanin, who allegedly had authority from all of the shareholders to make such a transfer (see, Fleet Credit Corp. v Cabin Serv. Co., 192 AD2d 421), and that his relationship to the premises was rather that of managing agent. Moreover, we agree with the trial court that the alleged oral agreement would in any event be barred by the Statute of Frauds, since the alleged services provided by defendant, claimed to constitute part performance, are as consistent with his being the managing agent as the owner of the premises (see, Newman v Crazy Eddie, 119 AD2d 738, 739, lv dismissed 68 NY2d 998). The trial court also properly held that defendant’s receipt and retention of rental proceeds was a continuing wrong that made the action for an accounting timely for up to six years prior to the commencement of the action (Butler v Gibbons, 173 AD2d 352). We have considered defendant’s remaining arguments and find them to be without merit. Concur — Rosenberger, J. P., Ellerin, Kupferman, Nardelli and Williams, JJ.