Opinion
341
March 4, 2003.
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 defendant's counterclaim for attorneys' fees, unanimously affirmed, without costs.
Jacques Catafago Steven Kaiser, for plaintiff-appellant.
Eduardo A. Fajardo, for defendants-respondents.
Before: Andrias, J.P., Saxe, Rosenberger, Williams, Gonzalez, JJ.
The trial court properly dismissed the complaint for failure to prove lost profits with reasonable certainty (see Ashland Mgt. v. Janien, 82 N.Y.2d 395, 404). 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 plaintiff's business (see East West Manhattan Retail Portfolio v. Zeller 1010 Formal, NYLJ, Aug 18, 2000, at 26 [App Term, 1st Dept]; Xamaka, Inc. v. 166 E. 61stSt. Assoc., NYLJ, Nov 17, 1999, at 25 [Sup Ct, N.Y. 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 performance of any covenant or failed to pay rent, as required by Article 19 of the lease in order to recover attorneys' fees.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.