INTRUDER DETECTION SYSTEMS, INC., Respondent,

v.

LIDO BEACH SYNAGOGUE, Appellant, -and- VAN LAWRENCE SUTAIN, Defendant.

NO. 2001-1498 N C

SUPREME COURT OF THE STATE OF NEW YORK APPELIATE TERM : 9th and 10th

JUDICIAL

DISTRICTS

July 5, 2002

OPINION OF THE COURT



PRESENT: FLOYD, P.J., DOYLE and WINICK, JJ.:

Appeal by defendant Lido Beach Synagogue from a judgment of the District

Court, Nassau County (J. Asarch, J.), entered on April 17, 2001, awarding

plaintiff the sum of $5,085.

Memorandum. Judgment unanimously modified by reducing the award in favor of

plaintiff to the sum of $2,705; as so modified, affirmed without costs.

It is uncontroverted that defendant agreed to pay plaintiff $85 per month

for five years for the plaintiff to monitor and service the security alarm

system it installed for defendant. Upon defendant's failure to pay any of

the monthly payments, plaintiff mitigated its damages by stopping, after one

year, the payments it in turn had been making to a central monitoring

station. At the trial, plaintiff refused to testify as to what portion of

its $85 monthly fee it paid to the central monitoring station. Accordingly,

the court below lacked the necessary information to calculate the extent to

which plaintiff mitigated its damages for the remaining four years of the

contract and, thus, the extent of the damages sustained. Under the

circumstances, the sum awarded to plaintiff on its second cause of action

should be reduced to one year of damages in the amount of $1,020 (see

generally, Donald Rubin Inc. v Schwartz, 191 AD2d 171). As plaintiff is also

entitled to recover the $1,685 balance due on the installation contract, the

judgment is reduced to the sum of $2,705. We note that we find no basis to

apportion the liability in this contract action