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622 Building Company, LLC v. Empire Blue Cross and Blue Shield

(Sup. Ct. NY Cty. 12/29/99)

In commercial lease dispute, the plaintiff/landlord's motion for summary judgment and to dismiss defendant's affirmative defenses and counterclaims partially granted where the sole issue before the court was whether landlord improperly denied tenant's request to move out of the building using the freight elevator during business hours. The lease gives plaintiff the right to limit tenant's ability to move out of the building during regular business hours. The right is reserved in the Rules and Regulations appended to the lease. Limitations on the use of the freight elevator are explicitly set forth in writing in the Building Manual. Though tenant asserts that it did not "sign" or "agree to" the Building Manual, that assertion is irrelevant. The landlord reserves the right in the lease to promulgate "reasonable" rules concerning the operation of the building and those rules are binding upon tenants so long as they are communicated in writing. The Building Manual constitutes such a written communication. Tenant's employees' signatures on nearly 80 invoices approving after hours costs associated with the move, and the unrebutted fact that tenant incurred, and paid for, after hours costs during the course of its tenancy prior to initiating its move, are further evidence that the after hours policy was well-known to tenant. Tenant's argument that landlord's alleged breaches of the lease excuses tenant's non-payment of additional rent, ignores the fact that this case involves a lease and the non-payment of rent and a landlord's breach of a covenant in the lease is independent of a tenant's covenant to pay rent and does not exonerate tenant's refusal or failure to pay rent. Moreover, there was no duress against tenant; it is not duress to threaten to take action which is legally permissible. Finally, the no-counterclaim clause in the lease was upheld against tenant.  Link to Full Text of Decision

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