New York City Economic Development Corp. v. T.C. Foods Import & Export Co.

46 A.D.3d 778, 847 N.Y.S.2d 669

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 2007
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of a restrictive covenant, the plaintiff appeals from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Weiss, J.), entered May 26, 2006, as after, inter alia, a nonjury trial on the issue of damages, granted the motion of the defendants Marathon Outdoor, LLC, PNE Media, LLC, and Titan Outdoor Holdings, LLC, and Outdoor Concepts, LLC, doing business as Titan Outdoor, to dismiss the complaint in its entirety, and denied the plaintiffs motion for leave to enter a default judgment against the defendant T.C. Foods Import and Export Co., Inc.

Ordered that the order and judgment is affirmed insofar as appealed from, with costs.

The measure of damages for breach of a restrictive covenant is the diminution in the value of the benefited parcel by reason of the breach (see Flynn v New York, Westchester & Boston Ry. Co., 218 NY 140 [1916]; Binghamton Plaza v Gilinsky, 32 AD2d 994 [1969]). Since the plaintiff did not adduce any evidence at trial as to such diminution, the Supreme Court properly granted the motion of the defendants Marathon Outdoors, LLC, PNE Media, LLC, and Titan Outdoor Holdings, LLC, and Outdoor Concepts, LLC, doing business as Titan Outdoor, to dismiss the complaint in its entirety.

The plaintiffs remaining contention is without merit. Spolzino, J.P., Krausman, Goldstein and Dickerson, JJ., concur. [See 11 Misc 3d 1087(A), 2006 NY Slip Op 50754(H).]