Appeal from a judgment of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 10, 2011. The judgment, insofar as appealed from, after a nonjury trial, dismissed plaintiff's cause of action.

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for a new trial limited to plaintiff's cause of action.

In this commercial claims action for breach of a lease agreement, plaintiff seeks to recover from defendant, its former tenant, unpaid rent for February 2009, which rent accrued after defendant had vacated the apartment, and the difference between the rent that plaintiff received from a new tenant, whose term started in March 2009, and the rent defendant had agreed to pay. After a nonjury trial, a judgment was entered which, insofar as appealed from, dismissed plaintiff's cause of action on the ground that it was barred by res judicata, as plaintiff had previously brought another commercial claims action against defendant, in January 2009, which action had included a claim for rent for December 2008 and January 2009. We reverse.

As plaintiff argues on appeal, a commercial claims judgment "may be pleaded as res judicata only as to the amount involved in the particular action and shall not otherwise be deemed an adjudication of any fact at issue or found therein in any other action or court" (CCA 1808-A; see Chorekchan v Forman, 18 Misc 3d 127[A], 2007 NY Slip Op 52362[U] [App Term, 2d & 11th Jud Dists 2007]; Omara v Polise, 163 Misc2d 989, 990 [App Term, 2d & 11th Jud Dists 1995]).

Because the February and March rent sought in this action had not accrued when plaintiff commenced the prior commercial claims action, plaintiff was not barred by res judicata from seeking such rent in this action (see 1 Robert F. Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 12:29 at 567 [4th ed 1998]; 74 NY Jur 2d, Landlord and Tenant § 394; see also Pearlbroad Realty Corp. v Broadstreet Stationers, 56 NYS 2d 289 [App Term, 1st Dept 1945]). Thus, the Civil Court's dismissal of plaintiff's cause of action based on res judicata did not provide the parties with substantial justice according to the rules and principles of substantive law (see CCA 1807-A).

Accordingly, the judgment, insofar as appealed from, is reversed, and the matter is remitted to the Civil Court for a new trial limited to plaintiff's cause of action. [*2]

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 12, 2013