CEMENT SHOES INC v. MAK (2008)

Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered March 13, 2007, after a nonjury trial, awarding plaintiff the principal sum of $100,069, unanimously modified, on the law, to the extent of dismissing the complaint as against Andy Mak, and otherwise affirmed, with costs in favor of plaintiff payable by defendant Jackson Mak. The Clerk is directed to enter an amended judgment accordingly.   Appeal from order, same court and Justice, entered September 19, 2006, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

 The finding that defendants' delay in consenting to an assignment, a breach of the assignment clause in plaintiff's lease, caused the proposed assignee to abandon the deal to purchase plaintiff's business was based on a fair interpretation of the evidence.   The damages, based on the purchase price in an existing contract, were not speculative (see generally Kenford Co. v. County of Erie, 67 N.Y.2d 257, 261, 502 N.Y.S.2d 131, 493 N.E.2d 234 [1986] ), and were within the contemplation of the parties.

The claim against Andy Mak, who was not a party to the lease, should have been dismissed as he was an agent for a disclosed principal.

We have considered defendant Jackson Mak's other contentions and find them unavailing.