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Landlord & Tenant Law
Tenant Entitled to Terminate Lease When Premises Were Not Broom Clean
1710 Realty, LLC v. Portabella 308 Utica, LLC NYLJ 12/11/20, p. 33, col. 4 AppDiv, Second Dept. (memorandum opinion)
In commercial landlord's action to recover damages for breach of contract, tenant appealed from Supreme Court's award of summary judgment to landlord on the issue of liability. Based on its construction of the lease terms, the Appellate Division modified to award summary judgment to tenant, but denied attorney's fees to tenant.
The subject lease had apparently conflicting provisions. Section 13.1 provided that landlord would deliver the premises as is, while section 2.1 provided that the lease would commence on the latest of three dates, one of which was the date on which landlord delivered occupancy in broom clean condition , free of the prior tenant's personal property and fixtures. The lease further gave tenant a right to terminate if the premises were not delivered within 90 days of the date of the lease's execution. When landlord delivered the premises, there were five truckloads of the prior tenant's material on the premises. After 90 days had passed, tenant notified landlord that it was exercising its right to cancel. Landlord then brought this action, contending that any debris remaining on the premises was de minimis, and that landlord contracted to deliver the premises as is. Supreme Court awarded summary judgment to landlord, and tenant appealed.
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