Bishop v. Century Theatres

64 A.D.2d 602, 406 N.Y.S.2d 541, 1978 N.Y. App. Div. LEXIS 12368

Opinion

In an action upon a liquidated damages clause of a lease, plaintiffs appeal (by permission) from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated March 9, 1977, which (1) reversed a judgment of the Civil Court of the City of New York, Kings County, entered August 7, 1975, which, inter alia, granted judgment in favor of plaintiffs in the principal sum of $4,200, and (2) dismissed the complaint. Order reversed, on the law, with costs to plaintiffs in this court, and with $25 costs and disbursements to plaintiffs in the Appellate Term, payable by the Century defendants, and judgment of the Civil Court reinstated. Since the parties undertook to modify certain of the provisions of the original lease in two extension agreements, yet failed to specifically abolish paragraph 41, the liquidated damages clause, the latter provision is deemed to continue and to operate in the 1970 extension agreement. Further, paragraph 7 of the 1970 extension agreement also evinces an intent that paragraph 41 of the original lease be specifically incorporated into, and continue to be a viable clause in, that agreement. Accordingly, respondents are liable in liquidated damages as scheduled in paragraph 41 (see Leitman v Baldwin, 57 AD2d 944). Titone, J. P., Rabin, Gulotta and Hawkins, JJ., concur.