Health 'N Sports, Inc. v. 1020 WW Food Corp.

191 A.D.2d 534, 595 N.Y.S.2d 328, 1993 N.Y. App. Div. LEXIS 2329

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1993
• Status: Published

Opinion

—In an action to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Murphy, J.), entered October 12, 1990, which after a nonjury trial, is in favor of the defendant and against the plaintiff dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The plaintiff Health 'N Sports, Inc., commenced this action against the defendant 1020 WW Food Corp., known as "Wolfie’s” restaurant, to recover an alleged underpayment of rent pursuant to a sublease, which required the defendant to pay the plaintiff a percentage of its monthly sales in addition to the base rent amount. On appeal, the plaintiff contends that the trial court erred in determining that the plaintiff failed to establish that the defendant breached the parties’ sublease. However, the determination of the Trial Judge dismissing the complaint was not against the weight of the credible evidence, and constituted a reasonable assessment of the evidence, giving due consideration to the trial court’s advantage of seeing and hearing the witnesses (see, Taran v State of New York, 186 AD2d 794; Vizzari v State of New York, 184 AD2d 564). A trial court’s resolution of questions of credibility is particularly within its domain and should not be disturbed on appeal if supported by the record (see, Taran v State of New York, supra; Vizzari v State of New York, supra). Based upon the credible evidence, the trial court properly found that the records maintained by the defendant were sufficient under the terms of the sublease.

We have reviewed the plaintiff’s remaining contentions and find them to be without merit. Thompson, J. P., Rosenblatt, Eiber and Miller, JJ., concur.