Alamanaan Enterprises, Inc., Appellant, v. Seventh Chelsea Associates et al., Respondents

Alamanaan Enterprises, Inc., Appellant, v Seventh Chelsea Associates et al., Respondents. [754 NYS2d 883] [MAJORITY] Order, Supreme Court, New York County (Kibbie Payne, J.), entered December 4, 2001, which, in an action by a tenant against its landlord for breach of lease and seeking lost profits, after a nonjury trial, dismissed both the complaint and defendants’ counterclaim for attorneys’ fees, unanimously affirmed, without costs. The trial court properly dismissed the complaint for failure to prove lost profits with reasonable certainty (see Ashland Mgt. v Janien, 82 NY2d 395, 404 [1993]). We would add that article 4 of the lease bars plaintiff from recovering lost profits caused by defendant or others making repairs or improvements to any portion of the building including those that close the sidewalk outside of plaintiffs business (see East W. Manhattan Retail Portfolio v Zeller 1010 Formal, NYLJ, Aug. 18, 2000, at 26, col 2 [App Term, 1st Dept]; Xamaka, Inc. v 166 E. 61st St. Assoc., NYLJ, Nov. 17, 1999, at 26, col 3 [Sup Ct, NY County]). While defendants did not cross-appeal from the dismissal of their counterclaim for attorneys’ fees, we note that there is no evidence that plaintiff defaulted in the observance or performanee of any covenant or failed to pay rent, as required by article 19 of the lease in order to recover attorneys’ fees. Concur — Andrias, J.P., Saxe, Rosenberger, Williams and Gonzalez, JJ.