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Landlord & Tenant Law
Commercial Tenant Not In Default
AZL Realty, LLC v. Newcare Pharmacy, Inc.2024 WL 4964695
AppDiv, Second Dept.
(memorandum opinion)
In landlord’s action for breach of a commercial lease, landlord appealed from Supreme Court’s grant of tenant’s motion to dismiss. The Appellate Division affirmed, holding that tenant was not in default under the lease.
The parties entered into a 10-year lease in January 2017. In September 2019, tenant notified landlord that it was electing to terminate the lease in accordance with its provisions, and that it would vacate the premises on or before March 27, 2020. Tenant surrendered the premises on or about that date and made rent payments until April 1, 2020. In September 2020, landlord brought an action to recover damages for breach. Landlord contended that tenant was a holdover because tenant breached the lease by leaving garbage and equipment behind after it vacated, and contended that landlord was entitled to 2½ times the monthly rent pursuant to a holdover provision in the lease. Supreme Court granted tenant’s motion to dismiss the complaint, emphasizing landlord’s failure to serve tenant with a notice of default or notice of termination for failure to cure a default.
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