Opinion
February 8, 1971
In an action for an accounting and related relief, defendants appeal from an order of the Supreme Court, Queens County, entered October 13, 1970, which denied their motion to dismiss plaintiff's amended complaint for failure to state a cause of action (CPLR 3211, subd. [a], par. 7). Order reversed, on the law, with $10 costs and disbursements, and motion granted. In our view plaintiff has failed to plead a cause of action. The purported cause of action arises from a sublease agreement wherein defendants covenanted, inter alia, that they would not compete with plaintiff for the negotiation of a new lease on certain theatre property. Subsequently defendants purchased the theatre property and sold it to another party at a substantial profit. The gravamen of plaintiff's complaint is that there was an implied covenant in the sublease that defendants would not purchase the property. We find no basis for the finding of such an implied covenant and the amended complaint, accordingly, must be dismissed. Rabin, P.J., Hopkins, Latham, Shapiro and Brennan, JJ., concur.