Sabor A. Mex., Inc. v. 76 S. St. Corp., 2013-10039, Index No. 22020/07.

• Decision Date: 15 April 2015
• Docket Number: 2013-10039, Index No. 22020/07.
• Citation: 7 N.Y.S.3d 401,127 A.D.3d 952,2015 N.Y. Slip Op. 03145
• Parties: SABOR A. MEXICO, INC., et al., respondents, v. 76 SOUTH STREET CORP., appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 952

7 N.Y.S.3d 401

2015 N.Y. Slip Op. 03145

SABOR A. MEXICO, INC., et al., respondents

v.76 SOUTH STREET CORP., appellant, et al., defendants.

2013-10039, Index No. 22020/07.

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

April 15, 2015.

Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, LLP, Uniondale, N.Y. (Jeffrey G. Stark, Richard A. Blumberg, and Danielle B. Gatto of counsel), for appellant.

Genevieve Lane LoPresti, Massapequa, N.Y., for respondents.

REINALDO E. RIVERA, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.

Opinion

In an action to recover damages for constructive eviction and breach of contract, the defendant 76 South Street Corp. appeals from a judgment of the Supreme Court, Nassau County (Dana, Ct.Atty.Ref.), entered July 17, 2013, which, upon an order of the same court (Warshawsky, J.), dated August 24, 2011, granting the plaintiffs' motion for leave to enter a judgment against it on the issue of liability, upon its failure to appear on a scheduled court date, and upon an order of the same court (Dana, Ct.Atty.Ref.), dated July 12, 2012, made after an inquest on the issue of damages, is in favor of the plaintiffs and against it in the principal sum of $139,164.69.

ORDERED that the judgment is modified, on the law, by reducing the amount awarded to the plaintiff from the principal sum of $139,164.69 to the principal sum of $6,550; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an appropriate amended judgment.

In 1996, the plaintiffs entered into a five-year lease with the defendant 76 South Street Corp. (hereinafter the defendant) for premises located in Oyster Bay. At the time the lease was executed, the plaintiffs also purchased a restaurant from the prior tenant of the subject premises. The plaintiffs opened a restaurant at the premises in June 1996. After the expiration of the lease, the plaintiffs continued to operate their restaurant from the premises as month-to-month tenants. In August 2006, the exhaust stack at the premises sustained damages, which prevented the plaintiffs from continuing to operate the restaurant. Some time after May 2007, the defendant allegedly refused to assist the plaintiff in obtaining the proper permit to reinstall the exhaust stack and in obtaining permission from an adjoining landowner to encroach on its property.

In December 2007, the plaintiffs commenced this action against, among others, the defendant for wrongful eviction and breach of a lease...