
    In the Matter of Marina Bay Club, Inc., Appellant, v Louis S. Cannizzaro, Respondent.
   Judgment unanimously modified and, as modified, affirmed, without costs, and matter remitted to Erie County Court for further proceedings, in accordance with the following memorandum: On respondent’s counterclaim for wrongful eviction, the court awarded damages in the sum of $45,640. Included in this sum was the amount of $35,000 for the value of the respondent’s leasehold interest and his business. The court based this $35,000 figure upon an “arm’s length” contract respondent entered into for the sale of his business, including the leasehold, which respondent alleged was aborted by the wrongful eviction. Although this may be a proper measure of damages for the wrongful eviction, respondent admits in his answer that the contract was aborted not by the eviction but by petitioner’s refusal to consent to an assignment of the lease. The alleged unreasonable refusal is the subject of a separate counterclaim which has been severed for a separate trial.

The measure of damages for a wrongful eviction is the difference between the actual rental value and the agreed-upon but unpaid rent (Randall-Smith v 43rd St. Estates Corp., 17 NY2d 99, 102). Here, there was no proof of the rental value of the property since the contract for the sale of the business included not only the value of the leasehold, but also the good will of the business.

Also included in the award of damages for the wrongful eviction was the sum of $8,000 for improvements made to the leasehold prior to the eviction. Since the improvements may have added value to the leasehold, damages, if any, for the improvements should be considered in connection with the award based on the value of the leasehold.

The award of $45,640 is vacated; a judgment of $2,640 is awarded representing the security deposit held by the landlord; and the matter is remitted to the trial court for additional testimony and a new determination on the issue of damages for the wrongful eviction. (Appeal from judgment of Erie County Court, Dillon, J. — summary proceeding.) Present — Callahan, J. P., Doerr, Denman, Boomer and O’Donnell, JJ.  