Opinion
April 12, 1994
Appeal from the Supreme Court, New York County (Burton Sherman, J.).
We agree with the trial court that Budgewood did not show that it sustained any damages as a result of Rent-All's failure to include a restrictive covenant in the deed to the factory it sold to a third party, and that such failure, although a breach of Budgewood's contract with Rent-All, was not such as to entitle Budgewood to rescission thereof or disentitle Rent-All to the payments due thereunder (see, Donovan v Aeolian Co., 270 N.Y. 267; cf., Clarke Contr. Co. v City of New York, 229 N.Y. 413, 420). Such a finding is not inconsistent with the earlier finding of another Justice that Rent-All's breach of contract "was not trivial or technical". We also agree with the trial court that there was no evidence that Budgewood was fraudulently induced to enter into the contract with Rent-All. Since the promissory note Budgewood gave Rent-All provides for interest at the rate of 10%, not 9%, interest on the award of damages attributable to the note should have been at the rate of 10% (see, Citibank v Liebowitz, 110 A.D.2d 615).
We have considered all other claims and find them to be without merit.
Concur — Carro, J.P., Rosenberger, Wallach, Kupferman and Williams, JJ.