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Seafood House, Inc. v. Pham

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT


April 7, 2009

SEAFOOD HOUSE, INC., APPELLANT,
v.
ANH PHAM, ET AL., RESPONDENTS.

In an action, inter alia, for specific performance of a right of first refusal contained in a lease, the plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Kings County (Dabiri, J.), dated April 1, 2008, as, after a non-jury trial, dismissed the complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

MARK C. DILLON, J.P., RUTH C. BALKIN, ARIEL E. BELEN and CHERYL E. CHAMBERS, JJ.

(Index No. 24855/04)

DECISION & ORDER

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

Upon review of a determination rendered after a non-jury trial, this Court's authority "is as broad as that of the trial court," and this Court may "render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses" (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; see Perfect Crown Vic, Inc. v Douce Hacking Corp., 56 AD3d 448).

We find no reason to disturb the Supreme Court's finding that the defendants David Kong and Lup S. Kong made a reasonable inquiry into the rights of the plaintiff under the commercial lease and, under the facts, reasonably relied on the purported waiver letter as evidence that the plaintiff had been afforded its contractual right of first refusal (see Finlay v Huber, 47 AD3d 883, 883; cf. Ferdico v Zweig, 55 AD3d 537, 538; Fischer v Sadov Realty Corp., 34 AD3d 630, 631; Yen-Te Hsueh Chen v Geranium Dev. Corp., 243 AD2d 708, 709; see generally Nicastro v Park, 113 AD2d 129, 134).

The plaintiff's remaining contention is without merit.

DILLON, J.P., BALKIN, BELEN and CHAMBERS, JJ., concur.

20090407

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