New York City Economic Dev. Corp. v T.C. Foods Import & Export Co., Inc.

New York City Economic Dev. Corp. v T.C. Foods Import & Export Co., Inc. 2007 NY Slip Op 10122 [46 AD3d 778] December 18, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

New York City Economic Development Corporation, Appellant,
v
T.C. Foods Import and Export Co., Inc., et al., Respondents. (And a Third-Party Action.)

—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo, Alan H. Kleinman, Brad M. Snyder, and Elizabeth I. Freedman of counsel), for appellant.

Stephen H. Weiner, New York, N.Y., for respondents Marathon Outdoor, LLC, PNE Media, LLC, Titan Outdoor Holdings, LLC, and Outdoor Concepts, LLC, doing business as Titan Outdoor.

In an action, inter alia, to recover damages for breach of a restrictive covenant, the plaintiff appeals from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Weiss, J.), entered May 26, 2006, as after, inter alia, a nonjury trial on the issue of damages, granted the motion of the defendants Marathon Outdoor, LLC, PNE Media, LLC, and Titan Outdoor Holdings, LLC, and Outdoor Concepts, LLC, doing business as Titan Outdoor, to dismiss the complaint in its entirety, and denied the plaintiff's motion for leave to enter a default judgment against the defendant T.C. Foods Import and Export Co., Inc.

Ordered that the order and judgment is affirmed insofar as appealed from, with costs.

The measure of damages for breach of a restrictive covenant is the diminution in the value of the benefitted parcel by reason of the breach (see Flynn v New York, Westchester & Boston Ry. Co., 218 NY 140 [1916]; Binghamton Plaza v Gilinsky, 32 AD2d 994 [1969]). Since the plaintiff did not adduce any evidence at trial as to such diminution, the Supreme Court properly granted the motion [*2]of the defendants Marathon Outdoors, LLC, PNE Media, LLC, and Titan Outdoor Holdings, LLC, and Outdoor Concepts, LLC, doing business as Titan Outdoor, to dismiss the complaint in its entirety.

The plaintiff's remaining contention is without merit. Spolzino, J.P., Krausman, Goldstein and Dickerson, JJ., concur. [See 11 Misc 3d 1087(A), 2006 NY Slip Op 50754(U).]