restaurant bar in New York

2013Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Westchester County, for the entry of a judgment, inter alia, declaring that the defendant properly terminated the lease and that, as a consequence, it is relieved of its obligation to repair and restore the subject premises as a restaurant and bar (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]).

2013Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Westchester County, for the entry of a judgment, inter alia, declaring that the defendant properly terminated the lease and that, as a consequence, it is relieved of its obligation to repair and restore the subject premises as a restaurant and bar (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]).

2013Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Westchester County, for the entry of a judgment, inter alia, declaring that the defendant properly terminated the lease and that, as a consequence, it is relieved of its obligation to repair and restore the subject premises as a restaurant and bar (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]).

2013Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Westchester County, for the entry of a judgment, inter alia, declaring that the defendant properly terminated the lease and that, as a consequence, it is relieved of its obligation to repair and restore the subject premises as a restaurant and bar (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]).

2003The Supreme Court properly weighed the relevant factors in granting the motion of the plaintiff, Incorporated Village of Sag Harbor, for a preliminary injunction enjoining the use of the appellants’ premises in any manner other than a restaurant in violation of the Village’s zoning code (see Village Code of Village of Sag Harbor § 55-2.2; Village Law § 7-714; Village of Chestnut Ridge v Roffino, 306 AD2d 522 [2003]; cf. Town of Smithtown v Carlson, 204 AD2d 537 [1994]; see also Matter of Rudolf Steiner Fellowship Found. v De Luccia, 90 NY2d 453, 458 [1997]; Incorporated Vil. of Old Westbury v

2003The Supreme Court properly weighed the relevant factors in granting the motion of the plaintiff, Incorporated Village of Sag Harbor, for a preliminary injunction enjoining the use of the appellants’ premises in any manner other than a restaurant in violation of the Village’s zoning code (see Village Code of Village of Sag Harbor § 55-2.2; Village Law § 7-714; Village of Chestnut Ridge v Roffino, 306 AD2d 522 [2003]; cf. Town of Smithtown v Carlson, 204 AD2d 537 [1994]; see also Matter of Rudolf Steiner Fellowship Found. v De Luccia, 90 NY2d 453, 458 [1997]; Incorporated Vil. of Old Westbury v

2003The Supreme Court properly weighed the relevant factors in granting the motion of the plaintiff, Incorporated Village of Sag Harbor, for a preliminary injunction enjoining the use of the appellants’ premises in any manner other than a restaurant in violation of the Village’s zoning code (see Village Code of Village of Sag Harbor § 55-2.2; Village Law § 7-714; Village of Chestnut Ridge v Roffino, 306 AD2d 522 [2003]; cf. Town of Smithtown v Carlson, 204 AD2d 537 [1994]; see also Matter of Rudolf Steiner Fellowship Found. v De Luccia, 90 NY2d 453, 458 [1997]; Incorporated Vil. of Old Westbury v

2003The Supreme Court properly weighed the relevant factors in granting the motion of the plaintiff, Incorporated Village of Sag Harbor, for a preliminary injunction enjoining the use of the appellants’ premises in any manner other than a restaurant in violation of the Village’s zoning code (see Village Code of Village of Sag Harbor § 55-2.2; Village Law § 7-714; Village of Chestnut Ridge v Roffino, 306 AD2d 522 [2003]; cf. Town of Smithtown v Carlson, 204 AD2d 537 [1994]; see also Matter of Rudolf Steiner Fellowship Found. v De Luccia, 90 NY2d 453, 458 [1997]; Incorporated Vil. of Old Westbury v

1998The action cannot be viewed as primarily legal in nature where the main thrust of plaintiffs allegations is that defendants’ transfer of franchise rights in a restaurant was a violation of their fiduciary duties to plaintiff in an alleged joint venture to develop the restaurant (see, Trepuk v Frank, 104 AD2d 780, 781 , citing Pieper v Renke, 4 NY2d 410 ).

1998The action cannot be viewed as primarily legal in nature where the main thrust of plaintiffs allegations is that defendants’ transfer of franchise rights in a restaurant was a violation of their fiduciary duties to plaintiff in an alleged joint venture to develop the restaurant (see, Trepuk v Frank, 104 AD2d 780, 781 , citing Pieper v Renke, 4 NY2d 410 ).

1996Contrary to the intervenors’ contention, the recitation by their attorney at the hearing of the costs of operating the restaurant and bar, without any evidence of how those costs affect their return, is not sufficient to establish an unnecessary hardship (Matter of Village Bd. v Jarrold, 53 NY2d 254, 260 ; see also, Matter of Board of Commrs. v Board of Zoning & Appeals, 188 AD2d 464 ).

1995Also submitted was the affidavit of an expert pharmacologist to the effect that the breathalyzer test results were consistent with the amount of alcohol Gatto had consumed, and that studies have shown that 66% of the population with a blood alcohol content in this range (.101% to .15%) normally exhibit "visible signs of intoxication.” Much of this evidence was also inadmissible—the police reports because they were hearsay (Flores v Pharmakitis, 209 AD2d 205, 206 ), unsworn (Hayduk v Mahoney Motor Sales, 18 AD2d 703 ; see, Bonsu v Metropolitan Suburban Bus Auth., 202 AD2d 538, 539 ), or, in the

1995Also submitted was the affidavit of an expert pharmacologist to the effect that the breathalyzer test results were consistent with the amount of alcohol Gatto had consumed, and that studies have shown that 66% of the population with a blood alcohol content in this range (.101% to .15%) normally exhibit "visible signs of intoxication.” Much of this evidence was also inadmissible—the police reports because they were hearsay (Flores v Pharmakitis, 209 AD2d 205, 206 ), unsworn (Hayduk v Mahoney Motor Sales, 18 AD2d 703 ; see, Bonsu v Metropolitan Suburban Bus Auth., 202 AD2d 538, 539 ), or, in the

1994Given the number of times the complainant encountered defendant at the restaurant bar, as well as the length and highly charged nature of those encounters, the complainant’s Grand Jury testimony clearly established that she was sufficiently familiar with defendant that, as a matter of law, there was no risk that police suggestion could lead to a misidentification (People v Rodriguez, 79 NY2d 445, 450 ).

1983It is tantamount to finding that a bar is an undesirable use, which conclusion runs contrary to the zoning plan permitting such a use (Matter of North Shore Steak House v Board of Appeals of Inc. V il. of Thomaston, 30 NY2d 238 , supra).

1913In Gushee v. City of New York ( 42 App. Div. 37, 48 ) the same rule was held as to the grant of a restaurant privilege in one of the public parks, the court saying: “But if at any time in the future it (the city) shall determine in good faith to take away the restaurant, the plaintiff must submit, because he takes his agreement subject to the power which the law has given to make these regulations.” Reliance is placed by the plaintiff on a statement made in Parish v. Baird ( 160 N. Y. 302 ) that the right to maintain vaults is an easement.

1913In Gushee v. City of New York ( 42 App. Div. 37, 48 ) the same rule was held as to the grant of a restaurant privilege in one of the public parks, the court saying: “But if at any time in the future it (the city) shall determine in good faith to take away the restaurant, the plaintiff must submit, because he takes his agreement subject to the power which the law has given to make these regulations.” Reliance is placed by the plaintiff on a statement made in Parish v. Baird ( 160 N. Y. 302 ) that the right to maintain vaults is an easement.