The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23 were read on this motion to DISMISS. This case arises out of a lease for commercial property. Plaintiff is Victoria’s Secret Stores, LLC (Victoria’s Secret). Defendant is New WTC Retail Owner, LLC (WTC Retail). Plaintiff alleges that defendant breached their lease and, as such, that plaintiff is entitled to rescind or terminate it. Additionally, plaintiff seeks declaratory relief that the purpose of the lease has been frustrated or, alternatively, that the lease is an unenforceable illusory contract. Defendant moves to dismiss under CPLR 3211 (a) (1) and (a) (7). The motion is granted in part and denied in part. BACKGROUND This dispute arises from a March 2015 lease under which Victoria’s Secret was to lease retail space in the new World Trade Center shopping center from WTC Retail. Plaintiff intended to use the space to sell beauty products as well as personal care and related merchandise. (See NYSCEF No. 2 at 2-3.) When the parties entered into the lease, the rebuilt World Trade Center was under construction by its owner, the Port Authority of New York & New Jersey. (See NYSCEF No. 9 at 2.) But the parties noted in the lease that the grand opening date for the shopping center was expected to be in October 2015. The lease obligates WTC Retail to perform specific work to make the leased premises ready for Victoria’s Secret to move in. Additionally, Article 1 of the lease provides that the “landlord shall endeavor to give tenant at least two hundred seventy (270) days prior notice…of the date landlord reasonably anticipates the delivery date will occur.” The lease defines that reasonably anticipated date as the estimated delivery date. (NYSCEF No. 3 at 12 §1.02, ["Term"].) Section 5.04 of the lease provides that “if for any reason whatsoever…the delivery date has not occurred prior to such date that is eighteen months from the estimated delivery date…this lease shall be automatically terminated.” (NYSCEF No. 3 at 26.) Victoria’s Secret alleges that it has repeatedly and unsuccessfully attempted to obtain an estimated delivery date (within the meaning of the lease) from WTC Retail. Thus, when the complaint was filed in October 2019 — more than four years after the store’s expected opening date of October 8, 2015 — plaintiff still had no estimated delivery date. (See NYSCEF No. 2 at 18.) Victoria’s Secret also alleges that WTC Retail engaged in unrelated discretionary construction that further delayed the delivery date. (Id. at 19.) Victoria’s Secret sued WTC Retail for breach of the lease, seeking declaratory relief and termination or rescission of the lease. WTC Retail now moves to dismiss under CPLR 3211 (a) (1) and (a) (7). DISCUSSION Dismissal of a complaint or cause of action under CPLR 3211 (a) (1) is warranted “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as matter of law,” (Goshen v. Mutual Life Ins., Co. of NY, 98 NY2d 314, 326 [2002]), and “conclusively disposes of the plaintiff’s claim.” (Fortis Fin. Servs., LLC v. Fimat Futures USA, 290 AD2d 383, 383 [1st Dept 2002].) Dismissal under CPLR 3211(a) (7) is appropriate when the complaint, accorded “the benefit of every possible favorable inference” (511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 152 [2002]), lacks “any cause of action cognizable at law” (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]). I. Victoria Secret’s Breach-of-Contract Claim Victoria’s Secret’s complaint alleges that WTC Retail breached the lease in three ways: failing to (i) provide Victoria’s Secret with an estimated date of delivery; (ii) perform construction identified in the lease as landlord’s work; and (iii) deliver the premises to Victoria’s Secret in tenant-ready condition. In moving to dismiss, WTC Retail argues that these allegations do not state a breach-of-contract cause of action because the lease does not set deadlines for fulfilling these contractual duties. This court disagrees. Even absent a fixed date to satisfy an obligation imposed by contract, a contractual party still must perform within a reasonable time. (See Cherlyn v. Lynch, 50 AD2d 982, 982 [3d Dept 1975].) Whether or not a given period of delay is “reasonable” for these purposes “depends upon the facts and circumstances of the particular case, including the subject matter of the contract, the situation of the parties, their intention, what they contemplated at the time the contract was made, and the circumstances surrounding performance.” (Teramo & Co. v. O’Brien-Sheipe Funeral Home, Inc., 283 AD2d 635, 636 [2d Dept 2001].) It is true that, as WTC Retail argues, the lease contemplates at least some delay between execution and delivery of the premises — as shown by the requirement that WTC Retail attempt to provide Victoria’s Secret with nine months’ advance notice of the estimated delivery date. (See NYSCEF No. 3 at 12.) But the delay that actually occurred was much, much longer. Indeed, even 48 months after the expected grand opening of the shopping center, and 55 months after lease execution, WTC Retail allegedly remained unable even to give Victoria’s Secret an estimated delivery date. That delay is particularly striking since the lease afforded WTC Retail only 18 months from the estimated delivery date to deliver the premises; and since the lease itself would run for only 10 years (or 120 months) from delivery. (See id. at 2-3, 26). This court concludes that Victoria’s Secret has sufficiently established, at least for pleading purposes, that WTC Retail’s delay in providing an estimated delivery date is unreasonable. WTC Retail argues that Victoria’s Secret’s breach-of-contract claim is nonetheless barred by exculpatory language found in §5.03 of the lease. This court is unpersuaded. Section 5.03 provides that WTC Retail shall not “be liable for damages or otherwise as a result of any failure to make the Premises available within the time and/or in the condition provided in this Lease”; and also that such a failure to make the premises available would not “permit Tenant to rescind or terminate this Lease except as otherwise expressly set forth in Section 5.04 below.” (NYSCEF No. 3 at 26.) And as noted above, §5.04 provides for termination of the lease only if more than 18 months have elapsed from the estimated date of delivery without actual delivery occurring. (See NYSCEF No. 3 at 26.) This exculpatory language is best read as applying only to actual delivery of the premises, not to the setting of an estimated date for delivery. To “make the premises available” to Victoria’s Secret is most naturally understood as referring to the act of delivering the premises itself. Additionally, the lease shields WTC Retail only for failing to “make the premises available…within the time…provided in this Lease” (id.); and the only deadline set by the lease that relates to making the premises available to Victoria’s Secret, the 18-month period of §5.04, governs delivery. Moreover, §5.03 itself provides that its exculpatory language constitutes an exception to what would otherwise be WTC Retail’s default obligation under Real Property Law §223-a to deliver the premises to Victoria’s Secret at commencement of the lease. (See id.) As articulated in the complaint, though, Victoria’s Secret’s breach-of-contract claim is not based merely on WTC Retail’s failure to deliver the premises, but also on WTC Retail’s failure to provide an estimated date of delivery. (See NYSCEF No. 2 at 16-18, 27.) This is not a merely technical distinction. Among other things, having an estimated delivery date in hand would be significant business-planning information for Victoria’s Secret. The lease itself contemplates the value of this information, by providing that WTC Retail should “endeavor to give Tenant at least two hundred seventy (270) days prior notice” of the estimated date. (See NYSCEF No. 3 at 12.) Setting an estimated date also starts an 18-month clock for delivery, under §5.04 of the lease. Further, as WTC Retail itself repeatedly emphasizes, the lease does not set a deadline for providing an estimated delivery date, and WTC Retail’s obligations under the lease do not commence until after it gives that estimated date. Interpreting the exculpatory language of §5.03 to bar even claims based on a failure to provide an estimated delivery date would risk leaving Victoria’s Secret essentially in limbo.1 WTC Retail’s motion to dismiss the breach-of-contract claim is denied. II. Victoria Secret’s Declaratory-Relief Claim Victoria’s Secret also asserts a claim for declaratory relief, alleging that the purpose of the lease has been frustrated by the extended construction-related delays. WTC Retail moves to dismiss on the ground that this delay was foreseeable. This court agrees. The frustration-of-purpose doctrine “is not available where the event which prevented performance was foreseeable and provision could have been made for its occurrence.” (Warner v. Kaplan, 71 AD3d 1, 6 [1st Dept 2009] [internal quotation marks omitted].) Here, the lease reflects that the parties did foresee the possibility of delay in completion of construction on the retail shopping center (and thus on delivery of the store premises) — as shown, for example, by the fact that the lease (i) provides for an estimated, rather than definite delivery date; (ii) does not set an express deadline for the naming of an estimated delivery date; (iii) allows up to 18 months to elapse after that estimated delivery date; and (iv) has an exculpatory clause limiting Victoria’s Secret’s rights in the event of delays in delivery. To be sure, it is possible that the parties did not, in fact, foresee the extent of the delays that have occurred. And it is possible that those delays have been unreasonably long, considered in the context of the lease as a whole. (See Point I, supra.) But that does not mean that the parties could not have foreseen those long delays and provided for their occurrence in the lease. Victoria’s Secret alternatively requests a declaration that the lease is an illusory contract because there is no date by which defendant needs to perform. This alternative claim cannot be squared with Victoria’s Secret’s argument — and this court’s conclusion — on the contract claim that WTC Retail was obligated to provide Victoria’s Secret with an estimated delivery date within a reasonable time from execution of the lease. (See Point I, supra.) Accordingly, it is hereby ORDERED that the branch of WTC Retail’s motion under CPLR 3211 seeking dismissal of Victoria’s Secret’s breach-of-contract claim is denied; and it is further ORDERED that the branch of WTC Retail’s motion under CPLR 3211 seeking dismissal of Victoria’s Secret’s declaratory-judgment claim is granted. Dated: August 12, 2020
