Bubba's Bagels of Wesley Hills, Inc. v. Bergstol

• Decision Date: 02 May 2005
• Docket Number: 2004-00259.
• Citation: Bubba's Bagels of Wesley Hills, Inc. v. Bergstol, 18 A.D.3d 411, 794 N.Y.S.2d 443, 2005 NY Slip Op 3623 (N.Y. App. Div. 2005)
• Parties: BUBBA'S BAGELS OF WESLEY HILLS, INC., et al., Appellants, v. ERIC BERGSTOL et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

18 A.D.3d 411

794 N.Y.S.2d 443

2005 NY Slip Op 03623

BUBBA'S BAGELS OF WESLEY HILLS, INC., et al., Appellants, v.ERIC BERGSTOL et al., Respondents, et al., Defendant.

2004-00259.

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

May 2, 2005.

In an action to enforce a restrictive covenant in a lease, and to recover damages for the breach thereof, the plaintiffs Bubba's Bagels of Wesley Hills, Inc., and S&D Restaurant, Inc., appeal from a judgment of the Supreme Court, Rockland County (Carey, J.), dated October 31, 2003, which, upon a decision of the same court dated August 14, 2003, made after a nonjury trial, dismissed the complaint insofar as asserted against the defendants Eric Bergstol, Dalzell Management Co., Inc., and Wesley Kosher, Inc.

Ordered that the appeal by the plaintiffS&D Restaurant, Inc., is dismissed as abandoned (see22 NYCRR 670.8 [e]); and it is further,

Ordered that the judgment is reversed insofar as appealed from by Bubba's Bagels of Wesley Hills, Inc., on the law, with one bill of costs to the plaintiffBubba's Bagels of Wesley Hills, Inc., payable by the respondents appearing separately and filing separate briefs, the decision is vacated, the defendants and their agents, servants, employees, and contractors are enjoined from selling or permitting the sale of fresh-baked goods, including, but not limited to, the products of Gruenebaum's Bakery, at the Wesley Kosher supermarket at the Wesley Hills Shopping Center in Wesley Hills, New York, and the matter is remitted to the Supreme Court, Rockland County, for a hearing on the issue of damages, if any, sustained by the plaintiffBubba's Bagels of Wesley Hills, Inc., and for the entry of an appropriate amended judgment, if necessary.

As this case was tried to the court, without a jury, this Court's power to review the...