DECISION and ORDER Currently before the Court, in this breach-of-contract action filed by Via Port New York LLC (“Plaintiff”), against Sears, Roebuck and Co. (“Defendant”), is Defendant’s motion to dismiss Plaintiff’s Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 6.) For the reasons set forth below, Defendant’s motion is granted.I. RELEVANT BACKGROUNDA. Plaintiff’s ClaimsGenerally, liberally construed, Plaintiff’s Complaint alleges as follows. On or about September 22, 1986, Rotterdam Square, L.P., entered into a contract, which provided for Defendant to lease a department store space (the “Lease”) at a shopping center in Rotterdam, New York (the “Mall”). (Dkt. No. 1, 8.) Plaintiff is the successor in interest to Rotterdam Square, L.P. (Id. at 1.)The Mall opened on or about September 1, 1988, offering three stores: Hess, Kmart, and Sears. (Id. at 12.) On or about June 5, 1995, the May Department Store Company (“May”) purchased Hess to operate a Filene’s store. (Id. at
16, 19.) Also, on or about June 5, 1995, Plaintiff and Defendant entered into the First Lease Amendment Agreement (“First Amendment”). (Id. at 17.) In pertinent part, the First Amendment altered Section 5 of Part I of the Lease (the “Occupancy Provision”), which provided as follows:After October 1, 1995, Tenant may terminate this Lease, if at any time, for a continuous period of more than twelve (12) months, there (i) are not occupants occupying at least sixty percent (60 percent) of the leaseable floor space of the Shopping Center (not including the leaseable floor space of Department Stores)…; or (ii) if Filene’s (or a retail store operating under the same name under which a majority of the stores formerly [prior to any name change] operated under the name Filene’s in the state of New York are then being operated) is not open and operating and either (a) J.C. Penney (…) or (b) Kmart (…) or (c) a retail store (which generally operates other stores of approximately 60,000 square feet or more) occupying at least 60,000 square feet of floor area in the space shown on Exhibit B as “Kmart” and/or “Kmart Permissible Expansion Area” is not open and operating.(Id. at 23.)The First Amendment also contained an expansion clause, pursuant to which Defendant could expand its square footage and trigger the First Amendment rent provision. (Id. at 37.) The rent provision provided that, if Defendant expands its store to 103,296 square feet in the Mall, the fixed rent payable by Defendant to Plaintiff shall be $361,536.00 per year, plus additional rent based on sales. (See generally Dkt. No. 1.)In 2005, May sold Filene’s to Federated Department Stores, and Filene’s name changed to Macy’s. (Id. at
