Realty Law Digest
Scott E. Mollen, a partner at Herrick, Feinstein, discusses two landlord-tenant cases: "Mall 1-Bay Plaza v. Bronx Vistasite Eyecare," where temporary closures under executive orders did not constitute a taking of tenant's business, and "Bronx Park Phase II Preserv v. V.C." where the court granted tenant's motion to hold a holdover eviction proceeding via virtual trial.
June 29, 2021 at 11:47 AM
18 minute read
Scott Mollen
Commercial Landlord-Tenant—Pandemic and Governor's Executive Orders Did Not Provide Basis To Invoke Doctrines of Frustration of Purpose, Impossibility and Lack of Consideration and Did Not Constitute a "Taking"
A plaintiff landlord alleged that the commercial tenant had failed to pay rent from April 1, 2020 through the present. The landlord asserted that it is owed $162,905.65 for rent, water charges, utilities and other charges.
The tenant asserted that there are numerous issues of fact which require denial of the landlord's motion for summary judgment. The tenant contended that discovery was needed and that "various governmental orders relating to the pandemic devastated its business." It argued that the "temporary closure of its business due to these outside factors constitutes a 'taking' and it should not have to pay the rent as a result." The tenant cited the doctrines of impossibility and frustration of purpose "to excuse its failure to pay rent." The tenant had "completely shut down for March 20, 2020 through September 21, 2020" and thereafter "operated in a limited capacity to the present."
The landlord countered that the tenant had failed to raise an issue of fact and the doctrines of frustration of purpose and impossibility were inapplicable.
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