Abdul v. Subbiah

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 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 plus interest from November 17, 1992, and otherwise affirmed, without costs. 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 AD2d 312). The trial court’s findings were based upon a fair interpretation of the evidence, which included not only plaintiffs testimony but also documentary evidence supportive thereof. The trial court’s award of damages is warranted by the record and serves to protect plaintiffs “restitution interest.” Since the breach of contract by non-performance was a total bre.ach, plaintiff was entitled to obtain restitution (see, Corbin, 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 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. Concur — Sullivan, P. J., Williams, Tom, Mazzarelli and Andrias, JJ.