Shachtman v. Masters-Lake Success, Inc.

Plaintiffs have attempted, by the allegations which were struck out, to plead facts which will permit them to recover, as damages resulting from a breach of the restrictive covenant, the loss of rentals from other tenants which they claim will result in the future from the alleged breach. The facts pleaded are insufficient for that purpose. In order to recover for such future loss, it will be necessary for plaintiffs to establish that the facts, which they claim will give rise to such loss, were known to both parties; and that when the lease was executed the particular loss claimed was within their contemplation as a contingency which might follow non-performance (Witherbee v. Meyer, 155 N. Y. 446, 449-450; Brown v. Weir, 95 App. Div. 78, 81; Rives v. American Ry. Express Co., 227 App. Div. 375, 376-377). The amended complaint may be served within 20 days after the date of the entry of the order hereon. Nolan, P. J., Beldock, Pette and Brennan, JJ., concur; Christ, J., dissents and votes to affirm the order.