X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Scott E. Mollen

Commercial Landlord-Tenant—Landlord Delivered Premises Approximately One Year Late—Rent Credit Provision Was an Unenforceable Penalty—Plaintiff Is Entitled to Reasonable Damages—Successive Offers of Compromise Permitted—Landlord Entitled to Legal Fees and Costs Since Award Was Below Offer of Compromise—Neither Side Was A Prevailing Party—Severe Decline in Sales at Brick and Mortar Stores in New York City

A plaintiff retail tenant commenced an action, alleging that the defendant landlord delivered the subject premises approximately a year after the date contemplated by the lease. The lease provided that the premises would be delivered to the tenant “as a ‘white box’” in August 2015, and the tenant would take an additional four months to prepare the premises for opening in December 2015 (tenant work). Following a trial, the court found that the proposed schedule was “excessively ambitious,” it was unreasonable to expect that the premises would have opened in December 2015, and the “late delivery” rent credit provision (penalty provision) in the lease bore “no reasonable relationship to any foreseeable damages” and therefore, was an unenforceable penalty. However, the court held that the tenant was entitled to reasonable damages.

The plaintiff had not accepted delivery of the premises until July 12, 2016. The court opined that the “contemplated schedule was excessively ambitious on the part of both parties and, based upon the evidence…there is no reason to believe that the store could have opened in December, 2015 under any scenario.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at customercare@alm.com

Dig Deeper

Lean Adviser Legal

Think Lean Daily Message

"To every extent possible, the improvement stage should include clients. They can improve their own internal processes. The entire issue of how GCs and their internal clients work together is an under considered topic. Then it goes further. Clients can improve and be better partners to their external law firms, and they can also highlight areas for external counsel to improve, and look for the commitment of law firms to do this. Law firms which do embrace improvement initiatives from clients lay foundations with them for the next project."

Learn More

 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2018 ALM Media Properties, LLC. All Rights Reserved.