A wife has been awarded the $475,000 annual rent received by a husband who leased out the parties’ East Hampton residence. The parties’ divorce Modification Agreement provided that the wife shall have “exclusive use and possession of the East Hampton Residence . . . until September 30, 2017 or her earlier remarriage or cohabitation with an unrelated male.”

Affirming the order of New York County Supreme Court Justice Laura E. Drager, the First Department in its March 25, 2014 ruling in Hirschfeld v. Hirschfeld, found that the plain language of the agreement was sufficient to withstand the husband’s argument that the Modification Agreement limited the wife’s use and possession of the East Hampton Residence to summers only.

Justice Drager properly measured the wife’s damages for the husband’s breach of the Modification Agreement, where he leased the East Hampton Residence to third parties during the wife’s period of exclusive use and possession. The fair market rental value of the property was the proper measure of damages, as evidenced by the actual rent of $475,000 per year received by the husband during 2009 through 2012. There was no basis for requiring the wife to prove how many times or on which occasions during the course of each year she would have actually used the property if it had been made available. The husband was given credit for for the $175,000 payments he made to the wife in 2009, 2010 and 2011, and any sums paid to the wife for 2012.

The appellate court also upheld Justice Drager’s award of 3% prejudgment interest as a proper exercise of her discretion.

Ira E. Garr of Garr Silpe, P.C., of Manhattan represented the husband. James A. Moss of Balber Pickard Maldonado & Van Der Tuin, PC, of Manhattan represented the wife.