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 YORKAPPELIATE 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