Opinion
January 21, 1971
Judgment, Supreme Court, New York County, entered on June 22, 1970, after nonjury trial, unanimously modified, on the law and the facts, to the extent of reversing the dismissal of the complaint as to the corporate plaintiff, Zip Foods, Inc., without costs and without disbursements, and the matter is remanded to Trial Term for an assessment of damages, if any, as sustained by the corporate plaintiff only. The Trial Justice was correct in the determination that on this record the defendant violated her covenant in unreasonably withholding her consent to the assignment of the lease, but that the corporation alone has the right to maintain the action. (See Lyons Holding Corp. v. Home Title Ins. Co., 250 App. Div. 640; Evangelista v. Longo, 13 A.D.2d 835.) And, the tenant corporation, signatory to the lease, may attempt to prove damages. ( Arlu Assoc. v. Rosner, 14 A.D.2d 272, affd. 12 N.Y.2d 693; 601 West 26 Corp. v. Wiley Sons, 32 A.D.2d 522.) However, this record is less than satisfactory in respect of damages as suffered by the plaintiff corporation, and for that reason the matter is remanded for further and adequate proof.
Concur — Stevens, P.J., Capozzoli, McGivern, Nunez and Macken, JJ.