Scott Mollen

Breach of Contract—Shopping Center Lease Dispute Remanded to NYS Supreme Court—Transfer To Texas Denied—Bankruptcy Filing Dismissed—Permissive vs. Mandatory Forum Clauses

A plaintiff shopping center owner commenced an action in N.Y.S Supreme Court, Monroe County, (state court), alleging breach of contract and seeking attorney fees and expenses. Defendant "A" removed the action to federal court (court). The court had before it "A's" motion to transfer venue to the Northern District (N.D.) of Texas and plaintiff's motion to remand the matter to the state court, for abstention and costs. The court granted the plaintiff's motion and denied "A's" motion.

The plaintiff, a New York limited partnership had its principal place of business in New York and owns a shopping center located in Texas. "A" is a limited partnership, organized and doing business in Texas. Individual defendant "B" is a resident of Texas. The plaintiff and "A" were parties to two leases: a 2008 lease and a 2002 lease. The plaintiff and "B" had entered into a lease guarantee agreement in connection with the 2008 lease. Pursuant to the 2008 lease, "A" operated a "medical, health and well-being facility in the shopping center."

The 2008 lease required that "A," at expiration of the lease, had to "[r]emove all such trade fixtures, equipment, alterations, … and improvements, and restore the leased premises as provided in Section 13.03 hereof." Section 13.03 of the 2008 lease provided that upon expiration of the tenancy, the tenant would surrender and leave the premises in the same condition as the premises were upon delivery of possession to the tenant, "reasonable wear and tear excepted."