90 Chicken Corp. v. 90 Jericho Realty Corp.

Opinion

90 Chicken Corp. v 90 Jericho Realty Corp.

2026 NY Slip Op 05258

September 16, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

90 Chicken Corp., appellant-respondent,

v

90 Jericho Realty Corp., respondent-appellant, et al., defendant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 16, 2026

2024-08830, 2024-08831, 2025-01653, (Index No. 605513/23)

Betsy Barros, J.P.

Lara J. Genovesi

Helen Voutsinas

Carl J. Landicino, JJ.

Moritt Hock & Hamroff LLP, Garden City, NY (Robert M. Tils and Alexander B. Litt of counsel), for appellant-respondent.

Berkman, Henoch, Peterson & Peddy, P.C., Garden City, NY (Joseph E. Macy and Nicholas Tuffarelli of counsel), for respondent-appellant.

[*1]

DECISION & ORDER

In an action, inter alia, for specific performance of a commercial property lease agreement and related injunctive relief, (1) the plaintiff appeals, and the defendant 90 Jericho Realty Corp. cross-appeals, from (a) a decision of the Supreme Court, Nassau County (Timothy S. Discroll, J.), entered May 3, 2024, and (b) a judgment of the same court entered May 28, 2024, and (2) the plaintiff appeals from an order of the same court entered January 17, 2025. The judgment, insofar as appealed from, upon the decision, made after a nonjury trial, is in favor of the plaintiff and against the defendant 90 Jericho Realty Corp. in the sum of only $1. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for leave to amend the amended complaint to name additional defendants and to assert new causes of action and for leave to renew its prior motion for preliminary injunctive relief directing the defendants to deliver the subject property to the plaintiff.

ORDERED that the appeal and cross-appeal from the decision are dismissed, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509); and it is further,

ORDERED that the cross-appeal from the judgment is dismissed as abandoned; and it is further,

ORDERED that the judgment is affirmed insofar as appealed from; and it is further,

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendant 90 Jericho Realty Corp.

The cross-appeal from the judgment must be dismissed as abandoned, as the defendant 90 Jericho Realty Corp. does not raise any argument in its brief with respect to its cross-[*2]appeal from the judgment (see Pawelski v Osczepinski, 192 AD3d 1038, 1039; Castle Restoration & Constr., Inc. v Castle Restoration, LLC, 155 AD3d 678, 680).

The plaintiff commenced this action against, among others, the defendant 90 Jericho Realty Corp. (hereinafter the defendant), a landlord, inter alia, for specific performance of a commercial property lease agreement and related injunctive relief. The plaintiff planned to open a Popeye's franchise restaurant in the subject property. However, the defendant failed to deliver possession of the property by the agreed upon date when the franchisor of the then current tenant, the defendant R & R of GC, Inc., exercised its rights under its franchise agreement with the defendant to assume the terms of the lease agreement between the plaintiff and the defendant. The plaintiff sought to recover damages in the form of lost future profits.

Following a nonjury trial, the Supreme Court, in a decision entered May 3, 2024, rejected the plaintiff's causes of action for specific performance and related injunctive relief. Although the court found that the defendant breached the lease agreement, it awarded the plaintiff the sum of $1 in nominal damages, ultimately finding that the plaintiff failed to meet its evidentiary burden on the issue of lost future profits. Thereafter, a judgment was entered on May 28, 2024, in favor of the plaintiff and against the defendant in the sum of $1. The plaintiff subsequently moved, among other things, for leave to renew its prior motion for preliminary injunctive relief directing the defendants to deliver the property to the plaintiff and to amend the amended complaint to name additional defendants and to assert new causes of action. In an order entered January 17, 2025, the court, inter alia, denied those branches of the motion. The plaintiff appeals.

"In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court and . . . it may render the judgment it finds warranted by the facts, taking into account that in a close case, the trial judge had the advantage of seeing the witnesses" (New York Tile Wholesale Corp. v Thomas Fatato Realty Corp., 244 AD3d 1133, 1134 [internal quotation marks omitted]; see Bank of Am., N.A. v Bloom, 202 AD3d 736, 737).

Under the circumstances presented here, we discern no basis to disturb the Supreme Court's findings and determination made against the plaintiff with respect to the causes of action for specific performance of the lease agreement and related injunctive relief. "The equitable remedy of specific performance is a discretionary remedy that provides an alternative to an award of damages as a means of enforcing a contract" (Victory State Bank v EMBA Hylan, LLC, 169 AD3d 963, 966; see Marinoff v. Natty Realty Corp., 34 AD3d 765, 767). "The decision whether to grant or deny the remedy of specific performance lies within the discretion of the court and should not be granted 'where it would cause unreasonable hardship or injustice'" (Heung Rha v Blangiardo, 189 AD3d 1098, 1099, quoting McGinnis v Cowhey, 24 AD3d 629, 629; see Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186, 195). The record shows that the plaintiff failed to sustain its burden of demonstrating, among other things, that the defendant was able to deliver the property to the plaintiff and that there was no adequate remedy at law (see Van Wagner Adv. Corp. v S & M Enters., 67 NY2d at 189).

We further discern no basis to disturb the Supreme Court's award of $1 in nominal damages with respect to the plaintiff's cause of action to recover damages in the form of lost future profits, due to, inter alia, the speculative nature of the plaintiff's proof in this regard and the plaintiff's failure to meet its burden of proving lost future profits for its prospective future business with the requisite level of reasonable certainty (see Kenford Co. v County of Erie, 67 NY2d 257, 261; Quik Park W. 57 LLC v Bridgewater Operating Corp., 189 AD3d 488; Teramo & Co. v O'Brien-Sheipe Funeral Home, 283 AD2d 635).

The plaintiff's remaining contentions are without merit.

BARROS, J.P., GENOVESI, VOUTSINAS and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court