Commercial Landlord-Tenant Tenant Forfeited $1 Million “Vacate Fee” When Tenant Failed to Vacate On/Or Before a “Time of the Essence” Vacate Date, By Four or Five Days

If deli fails to timely comply with its obligation to surrender the Premises…, then (i) Owner shall no objection to pay to deli any portion of the Termination Fee, (ii) deli shall refund…the First Termination Payment within three (3) business days after Owner's demand therefor, and (iii) Escrow Agent shall return to Owner the Second Termination Payment within three (3) business days after Owner's demand therefor.

…. Paragraphs 5(a) and 12(c) state that “time is of the essence.”

Comment: 154-7th Ave. Chelsea, Inc. v. Ballaghaderreen, Sup. Ct., N.Y. Co., Commercial Pt., Index No. 650516/2017, decided Mar. 27, 2018, Masley, J.

Commercial Landlord-Tenant—Use Provisions—Parties' Pattern of Conduct Demonstrated Modification That Was Unequivocally Referable to Alleged Oral Modification—Non-Waiver Provision Does Not Necessarily Bar Evidence of Waiver Franpearl LLC v. Orenstein, App. Tm. 1st Dep't, Index No. 570667/17 decided Mar. 29, 2018, Ling-Cohan, J.P., Gonzalez, Edmead, JJ. All concur.

Article 78 Proceeding—NYC Dep't of Housing, Preservation and Development (HPD)determination notice Cancelling 421-a Tax Benefits Invalid—Notice Sent to Owner,But Never Sent to Owner's Attorney Who Had Appeared in the Matter—OwnerSought Tax Benefits for Condominiums, but Operated Properties as Rental Buildings

The Grand 73 LLC v. N.Y.C. Hous. Pres. & Dev., Sup. Ct., N.Y. Co., Index No. 153157/2017, decided March 19, 2018, Bluth, J. Scott E. Mollen is a partner at Herrick, Feinstein.