From Casetext: Smarter Legal Research

Dennis' Natural Mini-Meals, Inc. v. 91 Fifth Avenue Corp.

Appellate Division of the Supreme Court of New York, First Department
Nov 15, 1994
209 A.D.2d 262 (N.Y. App. Div. 1994)

Opinion

November 15, 1994

Appeal from the Supreme Court, New York County (William J. Davis, J.).


The trial court properly determined plaintiff's damages as the difference between the market value of the premises and the rent reserved in the lease (see, Mid Hudson Recreational Ctrs. v Fallon, 96 A.D.2d 855). However, fair market value of the leasehold includes the value of plaintiff's renewal right, since the law assumes a renewal where the market value of the property is greater than the rent reserved under the lease (see, Great Atl. Pac. Tea Co. v. State of New York, 22 N.Y.2d 75, 84).

In addition, judicial estoppel precludes the defendant from maintaining that the value of the premises was less than $75 per square foot, the position it vigorously asserted at trial (see, e.g., Karasik v. Bird, 104 A.D.2d 758). Since the actual size of the premises is 3,498 square feet, the proper value of plaintiff's damages is $2,347,051.95, plus interest from February 20, 1990.

Concur — Sullivan, J.P., Carro, Rosenberger, Williams and Tom, JJ.


Summaries of

Dennis' Natural Mini-Meals, Inc. v. 91 Fifth Avenue Corp.

Appellate Division of the Supreme Court of New York, First Department
Nov 15, 1994
209 A.D.2d 262 (N.Y. App. Div. 1994)
Case details for

Dennis' Natural Mini-Meals, Inc. v. 91 Fifth Avenue Corp.

Case Details

Full title:DENNIS' NATURAL MINI-MEALS, INC., Appellant, v. 91 FIFTH AVENUE CORP.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 15, 1994

Citations

209 A.D.2d 262 (N.Y. App. Div. 1994)
618 N.Y.S.2d 771

Citing Cases

Paramount Leasehold, L.P. v. 43rd St. Deli, Inc.

In other words, inasmuch as the expired Lease allegedly has no current value, defendant asserts that…

General Elec. v. Inter-America Mktg. Sys

Appeal from the Supreme Court, New York County (Walter Schackman, J.). The IAS Court properly invoked the…