Guan Tou Mkt., Inc. v. 373 Wythe Ave. Realty, Inc.

• Decision Date: 13 November 2013
• Citation: 975 N.Y.S.2d 111,111 A.D.3d 667,2013 N.Y. Slip Op. 07449
• Parties: GUAN TOU MARKET, Inc., respondent-appellant, v. 373 WYTHE AVENUE REALTY, INC., etc., appellant-respondent.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 667
975 N.Y.S.2d 111
2013 N.Y. Slip Op. 07449

GUAN TOU MARKET, Inc., respondent-appellant,
v.
373 WYTHE AVENUE REALTY, INC., etc., appellant-respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 13, 2013.

[975 N.Y.S.2d 112]

Wenig Saltiel, LLP, Brooklyn, N.Y. (Leslie Perez–Bennie of counsel), for appellant-respondent.

Benjamin B. Xue, New York, N.Y., for respondent-appellant.

WILLIAM F. MASTRO, J.P., PETER B. SKELOS, RUTH C. BALKIN, and SHERI S. ROMAN, JJ.

In an action, inter alia, to recover damages for breach of contract, (1) the defendant appeals, and the plaintiff cross-appeals, from a judgment of the Supreme Court, Kings County (Partnow, J.), entered July 28, 2011, and (2) the defendant appeals from an amended judgment of the same court entered July 13, 2012, which, upon a jury verdict, and upon an order of the same court dated December 13, 2011, denying its motion pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law or, alternatively, to set aside the verdict as contrary to the weight of the evidence, is in favor of the plaintiff and against it in the principal sum of $200,000, and dismissed the defendant's counterclaims.

ORDERED that the appeal and the cross appeal from the judgment entered July 28, 2011, are dismissed, without costs or disbursements, as that judgment was superseded by the amended judgment entered July 13, 2012, and, in any event, the cross appeal from the judgment entered July 28, 2011, has been abandoned; and it is further,

ORDERED that the amended judgment is modified, on the law and the facts, by reducing the principal sum awarded to the plaintiff from $200,000 to $138,500; as so modified, the amended judgment is affirmed, without costs or disbursements, the judgment is vacated, and the matter is remitted to the Supreme Court, Kings County, for the entry of an appropriate

[975 N.Y.S.2d 113]

amended judgment in favor of the plaintiff and against the defendant in the principal sum of $138,500.

In 2001 the parties entered into a 10–year commercial lease pursuant to which the plaintiff, as tenant, leased premises owned by the defendant. In August 2006 the parties entered into a written stipulation of settlement (hereinafter the stipulation) whereby the plaintiff agreed to surrender its remaining leasehold interest in the premises in exchange for the payment of $125,000 in “buy-out funds,” plus the return of its $13,500 security deposit. The plaintiff vacated...