Plaintiff claims that defendants negligently failed to advise it that an amendment to a commercial lease would extinguish its purchase option upon sale of the premises, and that, but for defendants' negligence, it would not have signed the amendment but would have exercised its purchase option as of right between 2023 and 2024, acquiring the premises for no more than $11.4 million. It is undisputed that after the amendment was executed, the landlord received a bona fide third-party purchase offer and plaintiff exercised its right of first refusal, purchasing the premises in 2016 for $14.5 million.
Defendants motion for summary judgment dismissing the claim is denied. Defendants' email attaching a marked-up copy of the relevant lease section does not establish, as a matter of law, that defendants advised plaintiff as to the meaning of the amendment, and the parties dispute the oral advice that was provided by defendants. The fact that plaintiff's agent read the amendment does not establish, as a matter of law, that defendants were not negligent. Any evidence that plaintiff's agent, a sophisticated businessman, knew or should have known that the amendment was substantive despite defendants' advice that it was "housekeeping" does not disprove defendants' negligence. It is evidence that can be offered in mitigation of damages.
Alrose Steinway, LLC v. Jaspan Schlesinger, LLP, NY Slip Op 03310 (1st Dep't May 19, 2022)
