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The Leasing Hotline
NOTICE OF ASSIGNMENT
Where a tenant's notice of assignment to a landlord is untimely by 2 days, the tenant may not assign the lease to a third party without recourse. Lincoln Place, LLC v. RVP Consulting, Inc., et al., Nos.5519, 5520, 5521, 791 N.Y.S. 2d 31, Supreme Court of New York, Appellate Division, First Department, March 3, 2005.
The landlord and tenant entered into a lease for commercial space. The lease provided that the tenant could designate a new lessee without recourse as long as the designation was made before Nov. 1, 1997. The lease further provided that the tenant could assign the space, but would remain liable for rent. On Oct. 29, 1997, the tenant mailed a letter to the landlord that informed the landlord it would be assigning its interest in the lease to Omega Lincoln. Thereafter, the landlord commenced an action against the tenant for breach of the lease and moved for summary judgment. The trial court granted the landlord's summary judgment motion and the tenant appealed. The appellate court affirmed. It held that the lease unambiguously directed that although the landlord is only entitled to notice of any designation, such notice is deemed received by the landlord 5 days after the deposit of the notice with the post office. Here, because the tenant did not deposit the letter with the post office until Oct. 29, 1997, it was not deemed delivered until Nov. 3, 1997, which was 2 days later than the date permissible in the lease.
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