Bubba Bagels v. Bergstol

18 A.D.3d 411, 794 N.Y.S.2d 443, 2005 N.Y. Slip Op. 03623

Supreme Court, Appellate Division, Second Department, New York

BUBBA’S BAGELS OF WESLEY HILLS, INC., et al., appellants,
v.
Eric BERGSTOL, et al., respondents, et al., defendant.
May 2, 2005.

Background: Bagel shop brought suit to enforce restrictive covenant in its lease, prohibiting operation of “any other bakery.” The Supreme Court, Rockland County, Carey, J., after nonjury trial, dismissed complaint. Bagel shop appealed.

Holding: The Supreme Court, Appellate Division, held that covenant was violated.

Reversed.

West Headnotes
[1] KeyCite Notes

30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30XVI(I)3 Findings of Court
30k1008 Conclusiveness in General
30k1008.1 In General
30k1008.1(4) k. Credibility of Witnesses; Trial Court’s Superior Opportunity. Most Cited Cases

On appeal of case tried to court, without jury, Appellate Division’s power to review evidence is as broad as that of trial court, with appropriate regard given to decision of trial judge who was in position to assess credibility of witnesses.

[2] KeyCite Notes

30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30XVI(I)3 Findings of Court
30k1008 Conclusiveness in General
30k1008.1 In General
30k1008.1(1) k. In General. Most Cited Cases

On appeal of case tried to the court, trial court’s determination generally will not be disturbed on appeal unless it is obvious that conclusion could not have been reached on any fair interpretation of the evidence.

[3] KeyCite Notes

233 Landlord and Tenant
233II Leases and Agreements in General
233II(B) Construction and Operation
233k44 Express Covenants in General
233k44(1) k. In General. Most Cited Cases

Covenant in bagel shop’s commercial lease, prohibiting operation of “any other bakery” in the shopping center was violated by operation of bakery in supermarket which sold fresh-baked goods.

*444 (Cite as: 794 N.Y.S.2d 443, *444)
Benjamin Ostrer & Associates, P.C., Chester, N.Y. (Rajat P. Mundkur of counsel), for appellants.
Montalbano, Condon & Frank, P.C., New City, N.Y. (Richard H. Sarajian of counsel), for respondents Eric Bergstol and Dalzell Management Co., Inc.
Joseph J. Haspel, Goshen, N.Y., for respondent Wesley Kosher, Inc.

ANITA R. FLORIO, J.P., HOWARD MILLER, BARRY A. COZIER, and SONDRA MILLER, JJ.

In an action to enforce a restrictive covenant in a lease, and to recover damages for the breach thereof, the plaintiffs Bubba’s Bagels of Wesley Hills, Inc., and S & D Restaurant, Inc., appeal from a judgment of the Supreme Court, Rockland County (Carey, J.), dated October 31, 2003, which, upon a decision of the same court dated August 14, 2003, made after a nonjury trial, dismissed the complaint insofar as asserted against the defendants Eric Bergstol, Dalzell Management Co., Inc., and Wesley Kosher, Inc.

ORDERED that the appeal by the plaintiff S & D Restaurant, Inc., is dismissed as abandoned ( see 22 NYCRR 670.8[e] ); and it is further,

ORDERED that the judgment is reversed insofar as appealed from by Bubba’s Bagels of Wesley Hills, Inc., on the law, with one bill of costs to the plaintiff Bubba’s Bagels of Wesley Hills, Inc., payable by the respondents appearing separately and filing separate briefs, the decision is vacated, the defendants and their agents, servants, employees, and contractors are enjoined from selling or permitting the sale of fresh-baked goods, including, but not limited to, the products of Gruenebaum’s Bakery, at the Wesley Kosher supermarket at the Wesley Hills Shopping Center in Wesley Hills, New York, and the matter is remitted to the Supreme Court, Rockland County, for a hearing on the issue of damages, if any, sustained by the plaintiff Bubba’s Bagels of Wesley Hills, Inc., and for the entry of an appropriate amended judgment, if necessary.

[1] [2] [3] As this case was tried to the court, without a jury, this court’s power to review the evidence is as broad as that of the trial court, with appropriate regard given to the decision of the trial judge who was in a position to assess the credibility of the witnesses ( see Greenhill v. Stillwell, 306 A.D.2d 434, 761 N.Y.S.2d 498; Coverdale v. Zucker, 261 A.D.2d 429, 690 N.Y.S.2d 134). The trial court’s determination generally will not be disturbed on appeal unless it is obvious that the conclusion could not have been reached on any fair interpretation of the evidence ( see Greenhill v. Stillwell, supra ). Based upon our review of the record in this case, we find that the Supreme Court’s conclusion could not have been reached on any fair interpretation of the evidence. The evidence clearly demonstrated that a covenant in the commercial lease of the plaintiff Bubba’s Bagels of Wesley Hills, Inc. *445 (Cite as: 794 N.Y.S.2d 443, *445)
(hereinafter Bubba’s), which prohibited the operation of “any other bakery” in the Wesley Hills Shopping Center where Bubba’s leased its space, was violated ( see Brothers 3 Inc. v. Scappaticci, 199 A.D.2d 234, 604 N.Y.S.2d 965). We reject the contentions that the phrase “any other bakery” in Bubba’s lease is ambiguous, and that there was no meeting of the minds regarding its meaning.

The respondents’ remaining contentions are without merit.

Copr. (C) West 2006 No Claim to Orig. U.S. Govt. Works N.Y.A.D. 2 Dept.,2005.
Bubba’s Bagels of Wesley Hills, Inc. v. Bergstol
18 A.D.3d 411, 794 N.Y.S.2d 443, 2005 N.Y. Slip Op. 03623

Briefs and Other Related Documents

• 2004 WL 3718438 (Appellate Brief) Reply Brief of Plaintiffs-Appellants (Nov. 5, 2004)
• 2004 WL 3718437 (Appellate Brief) Respondent Wesley Kosher, Inc.’s Brief (Sep. 7, 2004)
• 2004 WL 3718435 (Appellate Brief) Brief of Plaintiffs-Appellants (Jul. 6, 2004)