Armory Owners, Inc., Respondent, v. Reserve 42 Realty Corp., Appellant, et al., Defendants

Armory Owners, Inc., Respondent, v Reserve 42 Realty Corp., Appellant, et al., Defendants. [690 NYS2d 453] [MAJORITY] —Order, Supreme Court, New York County (Edward Lehner, J.), entered December 16, 1998, which, after a nonjury trial, directed entry of judgment dismissing defendant-appellant’s third counterclaim, and judgment, same court and Justice, entered thereon on January 8, 1999, unanimously affirmed, with costs. We decline to disturb the trial court’s decision since its conclusions comport with a fair interpretation of the evidence (see, e.g., Birch v Carroll, 210 AD2d 119). The “heirs and assigns clause”, which appellant highlights for the first time on appeal, is only some evidence of the parties’ intent as to whether or not the parties intended that the so-called construction obligation covenant would run with the land (see, City of New York v Delafield 246 Corp., 236 AD2d 11, 24, mod 244 AD2d 272, lv denied 91 NY2d 811). The evidence supports the trial court’s conclusion that the parties did not so intend. We have considered appellant’s remaining arguments and find them to be unavailing. Concur — Ellerin, P. J., Rosenberger, Buckley and Friedman, JJ.