Justice David Schmidt
Plaintiff tenant moved for summary judgment dismissing landlord's counterclaims. Tenant leased space from landlord to open and operate a delicatessen. The agreement included termination and unavoidable delay clauses. Plaintiff terminated the lease early under the termination clause, due to defendant's failure to obtain a permanent certificate of occupancy (PCO), and vacated the premises. It sought a return of its security letter of credit and a refund of rent previously paid for the period after termination. Defendant asserted counterclaims arguing plaintiff impeded or prevented defendant from obtaining the PCO and breached its lease by the early termination. The court found plaintiff made a prima facie showing that its actions could not have caused defendant's failure to obtain the PCO required by a deadline. Yet, defendant raised a triable question whether plaintiff frustrated defendant's performance of the PCO condition. The court also noted the unavoidable delay clause seemed to anticipate what defendant argued prevented it from obtaining a PCO, presenting another issue, thereby precluding the granting of summary judgment as to defendant's first, third, fourth and sixth counterclaims.
