Luria & Son, Inc. v. Fingerman

497 So. 2d 682 (1986)

L. LURIA & SON, INC., a Florida Corporation, Appellant,
v.
Edward B. FINGERMAN, Robert Grossman, Ted Shapiro and Robert C. Testa, Individually and As General Partners of Biscayne West Associates, a California Limited Partnership, Appellees.

No. 86-1657.

District Court of Appeal of Florida, Third District.

October 28, 1986. Rehearing Denied December 9, 1986.

Myers, Kenin, Levinson & Richards, Kopelowitz, Atlas, Pearlman & Trop and Robin Corwin Campbell and Jan Atlas, Fort Lauderdale, for appellant.

Taylor, Brion, Buker & Greene and Arnaldo Velez, Miami, for appellees.

Before BARKDULL, BASKIN and FERGUSON, JJ.

PER CURIAM.

Upon review of the record, we hold that the trial court impermissibly varied the terms of the parties' lease^[1] when it ruled that the proposed construction by appellees of two restaurants in the mall parking area was reasonable and did not materially diminish parking available to appellant. See Walgreen Co. v. American National Bank & Trust Co., 4 Ill. App. 3d 549, 281 N.E.2d 462 (1972); Food Fair Stores, Inc. v. Jackson Heights Shopping Center, Inc., 55 Misc. 2d 205, 284 N.Y.S.2d 814, aff'd, 28 A.D.2d 1207, 285 N.Y.S.2d 1009 (1967), appeal denied, 21 N.Y.2d 645, 236 N.E.2d 863, 289 N.Y.S.2d 1026 (1968); Camichos v. Diana Stores Corp., 157 Fla. 349, 25 So. 2d 864 (1946). We therefore reverse the Final Declaratory Decree and Order for Temporary Injunction and the Supplementary Order Approving Plans of the Defendants and direct the trial court to enjoin the proposed construction. See Madigan Brothers, Inc. v. Melrose Shopping Center Co., 123 Ill. App. 3d 851, 79 Ill. Dec. 270, 463 N.E.2d 824 (1984).

Reversed and remanded with directions consistent with this opinion.

NOTES

[1] Paragraph 11 of the amendment to the parties' lease expressly provides that appellees "shall not construct any other buildings or improvements in the Shopping Center which would in any way affect the access or visibility of the demised premises and the signs on the fascade [sic] of said demised premises...." (Emphasis supplied.)