The Appellate Division affirmed, with costs, the Order which denied defendant's motion to dismiss the cause of action for breach of contract. On March 31, 2015, the parties entered into a 10-year lease for retail premises. The lease provided that the "Grand Opening Date" was "[e]stimated" to be October 8, 2015, and that defendant "shall endeavor" to give plaintiff an estimated delivery date at least 270 days prior to the expected delivery date of the premises. Plaintiff commenced this action in October 2019, alleging that defendant breached the lease by failing to provide an estimated delivery date, complete construction work specified in the lease, and deliver the premises.
The Appellate Division determined that giving plaintiff an estimated delivery date was not a condition precedent to delivery, but, rather, an independent obligation under lease. Since the provision did not specify a date by which to satisfy the obligation, defendant was obligated to provide an estimated delivery date within a reasonable time after the lease was executed. While the lease contemplated some delays between execution of the lease and delivery of the premises, plaintiff sufficiently alleged that the delays that actually occurred were unreasonable. Indeed, the lease was to run for only 10 years from delivery, and yet, nearly five years after the lease was executed, defendant was still unable to provide an estimated delivery date.
Defendant's argument that the no-damages-for-delay clause bars rescission of the lease for the delays caused by circumstances outside its control is unavailing. The clause provides that defendant is not liable for any damages incurred as a result of its failure to "make the Premises available within the time and/or in the condition provided" in the lease. It makes no mention of defendant's obligation to provide an estimated delivery date. In any event, intentional acts that caused delays, such as plaintiff alleges, would not fall with the ambit of the exculpatory clause.
Victoria's Secret Stores, LLC v. New WTC Retail Owner LLC, NY Slip Op 02773 (1st Dep't May 4, 2021)
