Opinion
April 1, 1991
Appeal from the Supreme Court, Westchester County (Zeck, J.H.O.).
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The plaintiff's complaint is premised on the failure of the defendant Sirbo Holdings Corp. to honor a right of first refusal to purchase premises in accordance with one of the provisions of a lease formerly existing between these two parties. The Supreme Court found the failure to have been without justification. The plaintiff, which has since assigned the lease and sold the supermarket business it operated on the premises, settled this action as against the defendants David and Leah Kaplan, to whom the defendant Sirbo Holdings Corp. sold those premises, thus precluding equitable relief normally available in cases such as this (see, Cortese v. Connors, 1 N.Y.2d 265; Tarallo v. Norstar Bank, 144 A.D.2d 157; Quigley v. Capolongo, 53 A.D.2d 714, affd 43 N.Y.2d 748).
We agree with the plaintiff that the Supreme Court, in declining to award damages, erroneously regarded this case as if it were one for breach of an option to purchase rather than the different right of first refusal (see, LIN Broadcasting Corp. v Metromedia, Inc., 74 N.Y.2d 54, 60; Metropolitan Transp. Auth. v Bruken Realty Corp., 67 N.Y.2d 156, 163; R.I. Realty Co. v Terrell, 254 N.Y. 121; see also, Cortese v. Connors, supra). We nonetheless agree with the Supreme Court's conclusion that the plaintiff is not entitled to damages representing the difference between the value of its business if it owned the realty on which that business was conducted and the value of the business absent such ownership. The plaintiff has failed to demonstrate that the claimed loss in value was within the contemplation of the parties to the lease at the time they executed it or that the loss was an incidental damage flowing from the breach relied upon (cf., Kenford Co. v. County of Erie, 67 N.Y.2d 257, 261; Witherbee v Meyer, 155 N.Y. 466). Since the plaintiff offered no proof of damages stemming from the loss of its bargain for the right of first refusal, the Supreme Court properly concluded that no damage had been sustained. Brown, J.P., Kooper, Harwood and Miller, JJ., concur.