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Case Notes
Insurance Lapse Deemed Not Curable
A New York commercial tenant has been denied a Yellowstone injunction and the right to cure a breach of its lease because that breach involved a gap in insurance, which sometimes cannot be cured. Toho Shoji (N.Y.) Inc. v VBG 990 AOA Member LLC, 2018 N.Y. Misc. LEXIS 3410 (Sup. Ct., NY Cty., 9/9/18).
Plaintiff tenant and the defendant landlord's predecessor in interest entered into a commercial property lease in 1991. One of the lease terms required the tenant to maintain, at its sole expense, liability insurance to cover the landlord and tenant. The lease required that such insurance be effective from day one of the lease term and throughout its remainder, and that the policy(ies) be with an insurance carrier and in an amount acceptable to the landlord. Further, the policy evidencing the insurance coverage was to be delivered to the landlord. Including possible extensions, the original 20-year lease could have remained in force until 2032.
Years later, the successor landlord came into possession of the property, and informed the tenant of such in a letter dated Jan. 11, 2018. In the letter the landlord's representative asked the tenant to amend the insurance policies to include the new landlord as an additional insured. Apparently nothing was forthcoming from the tenant, as the landlord's representative continued to write to the tenant over the next several months asking for changes to the insurance and for proof of insurance.
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