Opinion
5000
December 18, 2001.
Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered September 18, 2000, after a nonjury trial, awarding damages to plaintiff in the principal sum of $151,123.00 plus interest, for breach of a shareholders' agreement, unanimously modified, on the law and the facts, to reduce the trial court's award of damages to the sum of $101,123.00 plus interest from November 17, 1992, and otherwise affirmed, without costs.
Michael J. Spithogiannis, for plaintff-respondent.
Robert A. Roseman, for defendants-appellants.
Before: Sullivan, P.J., Williams, Tom, Mazzarelli, Andrias, JJ.
We find no basis to disturb the trial court's finding, essentially one of credibility, that the shareholders' agreement was not repudiated (see, Charles J. Hecht, P.C. v. Clowes, 224 A.D.2d 312). The trial court's findings were based upon a fair interpretation of the evidence, which included not only plaintiff's testimony but also documentary evidence supportive thereof. The trial court's award of damages is warranted by the record and serves to protect plaintiff's "restitution interest". Since the breach of contract by non-performance was a total breach, plaintiff was entitled to obtain restitution (see, Corbin on Contracts, § 1104 at 561-562;see also, Restatement [Second] of Contracts, § 373). However, in calculating the amount of damages, the trial court neglected to credit defendants with $50,000.00 reflected by two checks dated October 26, 1992 and November 1, 1992 in the amount of $25,000 each, which plaintiff admittedly received as part of a rent rebate and his share of the first week's profits from the parties' business.
We have considered defendants' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.