Gerber's Fast Food Service, Ltd. v. S & E Realty Co.

83 A.D.2d 602, 441 N.Y.S.2d 310, 1981 N.Y. App. Div. LEXIS 14889

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 20, 1981
• Status: Published

Opinion

In an action to recover damages for breach of a restrictive covenant in a lease, the parties (except plaintiff Blimpie of Suffolk, Inc.) cross-appeal from stated portions of a judgment of the Supreme Court, Suffolk County (Underwood, J.), entered July 11, 1980, which, after a nonjury trial, inter alia, (1) found that defendant S & E Realty Co. had breached a restrictive covenant in a store lease, and awarded plaintiff subtenant Gerber’s Fast Food Service, Ltd., a Blimpie franchisee, damages of $48,764.71; and (2) dismissed plaintiff Broadview Capital Corp’s complaint and S & E’s counterclaim for rental arrears. Judgment modified, on the law, by reducing the judgment to 6 cents. As so modified, judgment affirmed insofar as appealed from, with costs to plaintiff Gerber’s Fast Food Service, Ltd., payable by defendant S & E Realty Co. There was insufficient proof at trial to support the court’s finding that the sum of capitalization costs, less depreciation and recovery upon the sale of fixtures and fittings, properly constituted the difference between the rental value of plaintiff Gerber’s Fast Food Service, Ltd.’s, leasehold with the covenant against competition broken, and the same leasehold with the covenant unbroken (cf. Fairview Hardware v Strausman, 12 AD2d 810). Damiani, J. P., Mangano, Rabin and Gulotta, JJ., concur.