Opinion · Nylaw New York
ABATEMARCO v. BRIDON REALTY CO., 28 A.D.2d 1006 [2d Dept 1967]
CONO ABATEMARCO et al., Respondents, v. BRIDON REALTY CO., Appellant, etal., Defendant., 28 A.D.2d 1006 (Appellate Division of the Supreme Court of New York, Second Department. 1967)
- Type
- Opinion
- Court
- Nylaw New York
- Jurisdiction
- Nylaw
- Date
- 1967-10-30
- Topic
- general
ABATEMARCO v. BRIDON REALTY CO., 28 A.D.2d 1006 [2d Dept 1967] CONO ABATEMARCO et al., Respondents, v. BRIDON REALTY CO., Appellant, etal., Defendant.Appellate Division of the Supreme Court of New York, Second Department. October 30, 1967 In an action by lessees of an ice cream parlor in a shopping center (1) to enjoin their landlord, Bridon Realty Co., from renting any portion of the shopping center to anyone other than plaintiffs for the purpose of retailing ice cream and soda products, (2) to enjoin another lessee of premises in the shopping center and (3) for other relief, the landlord appeals from a judgment of the Supreme Court, Rockland County, dated January 26, 1967, in favor of plaintiffs against defendants in the amount of $713, together with costs and disbursements, and which decreed that, except for the premises occupied by plaintiffs, the landlord is "enjoined from permitting the sale of ice cream and soda products for on-premises consumption, except insofar as said ice cream and soda products shall be accompanied by meals served at tables or over a counter equipped with stools or seats for customer comfort; said injunction to remain in full force and effect until the legal termination of any lease now existing between the plaintiffs" and the landlord. Judgment reversed insofar as it is against appellant, on the law and facts, with costs, and complaint dismissed as to appellant, with costs.
Citator
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ABATEMARCO v. BRIDON REALTY CO.,28 A.D.2d 1006[2d Dept 1967]
CONO ABATEMARCO et al., Respondents, v. BRIDON REALTY CO., Appellant, et
al., Defendant.
Appellate Division of the Supreme Court of New York, Second Department.
In an action by lessees of an ice cream parlor in a shopping center (1) to enjoin their landlord, Bridon Realty Co., from renting any portion of the shopping center to anyone other than plaintiffs for the purpose of retailing ice cream and soda products, (2) to enjoin another lessee of premises in the shopping center and (3) for other relief, the landlord appeals from a judgment of the Supreme Court, Rockland County, dated January 26, 1967, in favor of plaintiffs against defendants in the amount of $713, together with costs and disbursements, and which decreed that, except for the premises occupied by plaintiffs, the landlord is "enjoined from permitting the sale of ice cream and soda products for on-premises consumption, except insofar as said ice cream and soda products shall be accompanied by meals served at tables or over a counter equipped with stools or seats for customer comfort; said injunction to remain in full force and effect until the legal termination of any lease now existing between the plaintiffs" and the landlord. Judgment reversed insofar as it is against appellant, on the law and facts, with costs, and complaint dismissed as to appellant, with costs. As to appellant, the findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. The defendant landlord leased a store under construction to defendant Dart Enterprises, Inc., for exclusive use as a restaurant and Dart agreed not to permit the premises to be used for any other purpose without the prior written consent of the landlord. Subsequently, the landlord leased another store under construction to plaintiffs for use as an ice cream and soda parlor and agreed that it would "not rent to any other Ice Cream and Soda Parlor in the shopping center." The restaurant was operated as a bona fide restaurant although it had a soda fountain and sold ice cream and soda products for consumptionPage 1007on the premises, with or without meals. In our opinion, sale and consumption of ice cream without meals was not shown to be more than incidental to the restaurant use and such use and consumption did not violate the landlord's agreement not to rent to any other "ice cream and soda parlor" in the shopping center (Fraser Pharmacy Corp.v.Sular Realty Corp.,27 Misc.2d 737, affd.18 A.D.2d 1052;Harper Successorsv.Sandab RealtyCorp.,40 Misc.2d 6; cf.Peoples Trust Co.v.Schultz NoveltySporting Goods Co.,244 N.Y. 14). Beldock, P.J., Christ, Brennan, Hopkins and Munder, JJ., concur.