DENNIS' NATURAL MINI-MEALS v. 91 FIFTH AVE

The trial court properly determined plaintiff's damages as the difference between the market value of the premises and the rent reserved in the lease (see, Mid Hudson Recreational Ctrs. v Fallon, 96 A.D.2d 855). However, fair market value of the leasehold includes the value of plaintiff's renewal right, since the law assumes a renewal where the market value of the property is greater than the rent reserved under the lease (see, Great Atl. Pac. Tea Co. v. State of New York, 22 N.Y.2d 75, 84).

In addition, judicial estoppel precludes the defendant from maintaining that the value of the premises was less than $75 per square foot, the position it vigorously asserted at trial (see, e.g., Karasik v. Bird, 104 A.D.2d 758). Since the actual size of the premises is 3,498 square feet, the proper value of plaintiff's damages is $2,347,051.95, plus interest from February 20, 1990.

Concur — Sullivan, J.P., Carro, Rosenberger, Williams and Tom, JJ.