Realty Law Digest
Scott E. Mollen, a partner at Herrick, Feinstein, discusses "SVC W. Babylon LLC v. 204 Great E. Neck Rd. LLC," where the defendant was granted dismissal of the plaintiff's option to renew the lease, and " Cayuga Indian Nation of New York v. Seneca County," where it was held that tribal sovereign immunity bars a county's foreclosure actions for nonpayment of taxes.
November 24, 2020 at 12:54 PM
15 minute read
Scott Mollen
Commercial Landlord-Tenant—Plaintiff's Effort To Renew Lease Rejected—Equity Would Not Relieve Plaintiff of Untimely Notice To Renew Where Out-of-Possession Tenant Failed To Make Improvements in Anticipation of Renewal and Lacked Goodwill as a Going Concern
A court granted a defendant's motion for summary judgment, dismissing the plaintiff's claim for injunctive relief and a declaration that the plaintiff's untimely notice to renew the party's lease was effective. The court denied the plaintiff's motion for leave to amend the complaint and to compel discovery.
The defendant owned the subject real property. In 1999, the property was divided into two parcels that were leased to ("A") pursuant to separate ground leases. "A" subleased one parcel (parcel A) to CVS West Babylon, LLC (CVS sublease). Pursuant to the CVS sublease, "A" built a freestanding CVS pharmacy and store on parcel A, at its sole cost and expense. In 2015, "A" assigned its interest in the ground lease of parcel A (CVS ground lease) and the CVS sublease to the plaintiff.
The CVS ground lease and the CVS sublease were for 20-year terms commencing Feb. 1, 2000 and ending Jan. 31, 2020. The CVS ground lease gave the plaintiff five options to renew for terms of five years each. In order to exercise the first option, the plaintiff was required to give written notice of the plaintiff's election to exercise the option "no later than nine (9) months prior to the termination date of the lease…time being of the essence." If the notice was not "so given and received, it automatically expired."
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