We're Assoc. Co. v Hornell Brewing Co., Inc.

[*1] We're Assoc. Co. v Hornell Brewing Co., Inc. 2009 NY Slip Op 51980(U) [25 Misc 3d 1205(A)] Decided on September 23, 2009 Nassau Dist Ct, First District Bruno, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 23, 2009
Nassau Dist Ct, First District

We're Associates Company, Petitioner,

against

Hornell Brewing Co., Inc. 5 Dakota Drive Lake Success, New York 11042, Respondent.



SP 3011/09



Hartman & Craven, LLP, Attorney for Petitioner

488 Madison Avenue

New York, New York 10022

Rosenberg, Calica & Birney, LLP, Attorney for Respondent

100 Garden City Plaza, Suite 408

Garden City, New York 11530-3200

Robert A. Bruno, J.

Petitioner's motion for summary judgment, pursuant to CPLR 3212, is granted. The respondent's cross-motion for summary judgment, pursuant to CPLR 3212, is denied.

This is a summary holdover proceeding in which possession and use and occupancy in the sum of four hundred fifty thousand one hundred ninety dollars and thirty-two ($450,190.32) cents are at issue. According to the parties' submissions herein, the following facts are uncontroverted:

Petitioner and respondent entered into a lease dated July 13, 1994 which was modified and/or amended several times over the years. Of particular importance is the Fifth Modification of Lease Agreement dated July 20, 2006 which reads, in pertinent part, as follows: 8.Article 50 is hereby inserted as follows:

"CANCELLATION OPTION 50. Tenant shall have the option to terminate this Lease at any date after September 30, 2008 provided Tenant gives Landlord not less than nine (9) months prior written notice to terminate (the "Cancellation Notice"). Such cancellation shall be effective as of the date nine (9) months after the last day of the month in which such Cancellation Notice is sent (the "Termination Date"). As of the Termination Date:

(a)all fixed annual rent and additional rent payable under this Leaseshall be paid through and apportioned as of the Termination Date;

(b)neither party shall have any rights, liabilities or obligations underthis Lease for [*2]the period accruing after the Termination Date, except those which, by the provisions of this Lease, expressly survive thetermination of the term of this Lease, and

(c)Tenant shall vacate, quit, and surrender the Demised Premises inthe condition required under this Lease, time being of the essencethereto.

This option to terminate shall be self-operative and no additional agreement between Landlord and Tenant shall be necessary to effectuate such termination; provided, however, Landlord and Tenant shall, for their mutual convenience, execute a termination agreement prior to the Termination Date.

Based upon article 50, the "Cancellation Option", on July 25, 2008, respondent's chief executive officer, David K. Menashi sent a letter titled "Cancellation Notice" to petitioner. This letter stated the following:

Re:5 Dakota Drive, Lake Success, New York Dear Halley:

The purpose of this letter is to advise you that Hornell Brewing Co., Inc. has elected pursuant to Article 50 of the Lease Agreement, dated July 13, 1994 between the parties, as modified by the Fifth Modification to Lease Agreement, dated, June 20, 2006, to exercise its option to terminate the Lease for the above reference premises, effective midnight on April 30, 2009.

Finally, on or about October 31, 2008, the petitioner and St. Mary's Hospital for Children, a non-party to this proceeding, signed a lease for the same premises at 5 Dakota Drive, Lake Success that respondent was to vacate on April 30, 2009 (see Exhibit 4 to petitioner, Andrew Newman's affidavit). Said lease has several provisions that are tangentially operative in the instant case as follows:

TERM

2.A.The term of this lease shall commence on April 1, 2009, hereinafter referred to as the "Term Commencement Date", and shall terminate on March 31, 2024, hereinafter referred to as the "Expiration Date", unless earlier terminated or extended as provided herein.

B.If, on the foregoing date specified for the Term Commencement Date, "Landlord's Initial Construction" (as defined in Article 5 hereof) shall not be "substantially completed" in accordance with Schedule A annexed hereto, then the Term Commencement Date shall be postponed until the date on which Landlord's Initial Construction shall be "subsequently completed" and the term of this lease (hereinafter referred to as the "Demised Term") shall be [*3]executed so that the Expiration Date shall be fifteen (15) years after the last day of the month in which the Term Commencement Date occurs. "Substantially completed" as used herein is defined to mean when the only items of Landlord's Initial Construction to be completed are those which do not materially interfere with Tenant's use and occupancy of the Demised Premises and Landlord has given Tenant ten (10) days written notice of "Substantial Completion". Should the Term Commencement Date be a date other than the first day of the month, Tenant shall pay a pro rata portion of the rent from such date to the first day of the following month.

C.Notwithstanding the foregoing, in the event that the Term Commencement Date has not occurred by July 1, 2009, except for delays caused by Tenant or changes requested by Tenant, Landlord shall abate the base annual rent hereunder as a credit against such rent at the rate of one day's base annual rent for each day between July 1, 2009 and the Term Commencement Date.

D.Notwithstanding anything herein to the contrary, in the event that the Term Commencement Date has not occurred by April 1, 2010, except for delays caused by Tenant or changes requested by Tenant, Tenant shall have the right to terminate this lease upon not less than ten (10) days written notice to Landlord sent by April 10, 2010 (provided that such notice shall not be effective to terminate this lease if the Demised Premises is "substantially completed" prior to the tenth (10th day following the timely and effective delivery of Tenant's termination notice). If such termination shall become effective, Landlord shall return to Tenant the security deposited with Landlord pursuant to Article 48 of this lease.

E.Notwithstanding anything herein to the contrary, in the event that the Term Commencement Date has not occurred by October 1, 2009, except for delays caused by Tenant or changes requested by Tenant, Tenant shall have the option to extend its lease for Suite 308 at the Building on a "month-to-month" basis at the rent and additional rent due for September 2009 under the lease for Suite 308 at the Building until either (I) the Term Commencement Date or (ii) if Tenant elects to terminate this lease pursuant to Article 2.D. hereof, such termination becomes effective. (Emphasis supplied).

In the instant motion, the petitioner contends that the respondent canceled the lease in accordance with article 50 found in the Fifth Modification of Lease and the Cancellation Notice dated July 25, 2008, and the respondent is now holding over in the subject premises entitling the petitioner to "a sum equal to two times the rent and additional rent (inclusive of escalations) that was payable per month under this lease during the last month of the terms thereof." (see Exhibit 2 to petitioner, Andrew Newman's affidavit, paragraph 17[B]). The petitioner further contends that they were unequivocal in notifying the respondent by letters dated November 4, 2008 (Exhibit 5 to petitioner, Andrew Newman's affidavit); dated February 4, 2009 (Exhibit 6 to petition, Andrew Newman's affidavit); and dated February 20, 2009 (Exhibit 7 to the same affidavit). These letters read respectively, as follows:

November 4, 2008 [*4]

Hornell Brewing Company, Inc.

5 Dakota Drive, Suite 205

Lake Success, New York 11042

Via Certified Mail Re:Agreement of Lease dated July 13, 1994, as amended (the "Lease") between We're Associates ("Landlord"), and Hornell Brewing Company, Inc. ("Tenant"), for premises at 5 Dakota Drive, Lake Success, New York) (the "Premises")Gentlemen:

Please be advised of the following:

1.Tenant has exercised its option to terminate the Lease pursuant to Article 50 of the Lease as amended by certain Fifth Modification of Lease Agreement dated June 20, 2006. (copy attached).

2.Your Lease terminates on April 30, 2009 ("Lease Expiration Date").

3.Article 17 of the Lease requires Tenant to pay to Landlord two (2) times the escalated rent and additional rent for any period Tenant occupies the Premises after the Lease Expiration Date:

4.Article 17 of the Lease also allows Landlord to recover possession of the premises after the Lease Expiration Date.

5.Further, pursuant to Article 17 of the Lease Tenant will indemnify Landlord against any claim or damage to Landlord or any succeeding tenant, resulting from Tenant's failure to vacate the Premises. Landlord hereby notifies Tenant that Landlord has entered into a succeeding lease for the Premises. Therefore, if Tenant does not vacate the Premises, in the manner required by the Lease, Landlord will suffer significant losses. Landlord will hold Tenant responsible for any and all such compensatory, consequential, and other damages suffered by Landlord.Accordingly, Landlord hereby notifies Tenant that Tenant must vacate, quit and surrender the Premises to Landlord, as required by the Lease, on or before the [*5]Lease Expiration Date, time being of the essence with respect thereto.

Very truly yours,

We're Associates Company

/s/ Harold Rechler

Harold Rechler

Corporate Counsel

February 4, 2009

Hornell Brewing Company, Inc.

5 Dakota Drive, Suite 205

Lake Success, New York 11042

Via Certified Mail Re:Agreement of Lease dated July 13, 1994, as amended (the "Lease") between We're Associates ("Landlord"), and Hornell Brewing Company, Inc. ("Tenant"), for premises at 5 Dakota Drive, Lake Success, New York) (the "Premises")Gentlemen:

Please be advised of the following:

1.Tenant has exercised its option to terminate the Lease pursuant to Article 50 of the Lease as amended by certain Fifth Modification of Lease Agreement dated June 20, 2006.

2.Pursuant to your notice of cancellation, your Lease terminates on April 30, 2009 ("Lease Expiration Date").

3.Article 17 of the Lease requires Tenant to pay to Landlord two (2) times the escalated rent and additional rent for any period Tenant occupies the Premises after the Lease Expiration Date:

4.Article 17 of the Lease also allows Landlord to recover possession of the premises after the Lease Expiration Date.

5.Further, pursuant to Article 17 of the Lease Tenant will indemnify [*6]Landlord against any claim or damage to Landlord or any succeeding tenant, resulting from Tenant's failure to vacate the Premises. Landlord hereby notifies Tenant that Landlord has entered into a succeeding lease for the Premises. Therefore, if Tenant does not vacate the Premises, in the manner required by the Lease, Landlord will suffer significant losses. Landlord will hold Tenant responsible for any and all such compensatory, consequential, and other damages suffered by Landlord.Accordingly, Landlord hereby reminds Tenant that Tenant must vacate, quit and surrender the Premises to Landlord, as required by the Lease, on or before the Lease Expiration Date, time being of the essence with respect thereto.

Very truly yours,

We're Associates Company

/s/ Harold Rechler

Harold Rechler

Corporate Counsel

February 20, 2009

Certified Mail - Return Receipt Requested, with a 2nd copy via FedEx Hornell Brewing Company, Inc.

5 Dakota Drive, Suite 205

Lake Success, New York 11042 RE:Agreement of Lease Dated July 13, 1994, as amended (as so amended, the "Lease") between We're Associates Company, as landlord ("Landlord") and Hornell Brewing Company, Inc, as tenant ("Tenant") for premises at 5 Dakota Drive, Lake Success, New York) (the "Premises") [the "Building"]

Dear Tenant: In accordance with Tenant's CANCELLATION NOTICE dated July 25, 2008 (the Cancellation Notice"), the term of the Lease ends on April 30, 2009 (the "Lease Expiration Date").[*7]By letters dated November 4, 2008 and February 4, 2009, Landlord confirmed and re-confirmed the Lease Expiration Date.In reliance upon the Cancellation Notice and the Lease Expiration Date established thereby, on the one hand, and Tenant's obligation to vacate the Premises on or before the Lease Expiration Date, on the other, Landlord has leased the Premises to St. Mary's Hospital for Children ("St. Mary's") [the New Lease"].Under the New Lease, St. Mary's is entitled to a day-for-day abatement of rent if the "Term Commencement Date" thereof does not occur by July 1, 2009; and St. Mary's has the right to cancel the New Lease if the "Term Commencement Date" thereof does not occur by April 1, 2010.St. Mary's is presently a tenant of another suite within the Lake Success Quadrangle (the St. Mary's Premises") and the New Lease permits St. Mary's to remain in possession thereof on a month-to month basis until the "Term Commencement Date" of, or St. Mary's election to cancel, the New Lease.Thus, any failure of Tenant to vacate, quit and surrender the Premises by the Lease Expiration Date may result in an abatement of rent or cancellation of the New Lease as well as the loss of an opportunity for Landlord to lease the St. Mary's Premises to another tenant.A recent drive-by inspection of the status of construction of the building in which Tenant will be moving its offices to leads Landlord to believe that those offices will not be ready for occupancy before August, 2009, at the earliest. Under the circumstances, Landlord hereby demands immediate written assurance that Tenant has nevertheless made arrangements to vacate, quit and surrender the Premises on or before the Lease Expiration Date.In the event that Tenant has not made such arrangements and Tenant fails or refuses to vacate, quite and surrender the Premises on or before the Lease Expiration Date, Landlord will hold Tenant liable for all direct and consequential damages resulting therefrom, including (without limitation) any rent abatement to St. Mary's, the full rental value of the New Lease, (if cancelled) and the loss of rental opportunities on the St. Mary's Space.

Very truly yours,

We're Associates Company [*8]

By:/s/ G. Martin Wexler

G. Martin Wexler

Operating Partner

CC:Don Vultaggio

David K. Menashi, Chief Executive Officer

Martin B. Cunningham, General Counsel

Richard Adonailo, Chief Financial Officer

Respondent in its cross-motion contends that the petition is defective as the petitioner did not annex a copy of the notice terminating the lease which is contrary to several cited cases. Further, and in the alternative, the respondent contends that discovery from St. Mary's Children's Hospital, a non-party to this proceeding, is necessary to uncover the allegedly "fraudulent and improper actions" of the petitioner which induced the respondent to incur costs, expenses and delay in vacating the subject premises by April 30, 2009 "to accommodate the Landlord and its tenant, St. Mary's Hospital, by leaving its fixtures, improvements and furnishings" in the subject premises when it vacates same. In addition, respondent contends that the parties had agreed to an extension of time to vacate the subject premises as evidenced by a letter dated November 14, 2008. The letter dated November 14, 2008, which was in response to petitioner's letter dated November 4, 2008 mentioned earlier, states as follows:

November 14, 2008

Mr. Harold Rechler

The We're Group

100 Jericho Quadrangle

Jericho, NY 11753

Re: Agreement of Lease dated July 13, 1994, as amended (the "Lease") between We're Associates Company, Inc. ("Tenant"), for premises at 5 Dakota Drive, Lake Success, New York (the "Premises")

Dear Mr. Rechler:

I am writing to you regarding the above referenced leased property and our exercised option to terminate the lease effective April 30, 2009. We have been introduced by your Andy Newman to representatives of St. Mary's, who we understand is to become the successor tenant in the above referenced space. It is our understanding from those conversations that St. Mary's is willing to be flexible regarding our move out schedule and will not require that we vacate the premises on exactly the April 30, 2009 date.

We will assume this arrangement is acceptable to you. Thank you for your consideration [*9]in this matter.

Very truly yours,

/s/ John Posillico

John Posillico

(Emphasis supplied).

All of respondent's contentions in its cross-motion are without merit. Respondent's request for discovery of a non-party does not arise to the level of facts unavailable to the opposing party under CPLR 3212(f). In other words, respondent's cross-motion has not demonstrated the likelihood that discovery will lead to evidence sufficient to defeat summary judgment (see, Mazzaferro v. Barterama Corp., 218 AD2d 643, 630 NYS2d 346 [2d Dept 1995]; Frouws v. Campbell Foundry Co., 275 AD2d 761, 714 NYS2d 227 [2d Dept 2000]; CPLR 3212[f]). The case of Joseph P. Day Realty Corp v. Jeffrey Lawrence Associates, Inc., 270 AD2d 140, 704 NYS2d 587 [1st Dept 2000] is very analogous to the case at bar. In the Joseph P. Day Realty Corp case, the Court stated, in relevant part, as follows:

Where a lease contains a clause requiring any modification of the terms of such lease to be in a writing signed by the landlord, an oral modification is generally precluded (see, General Obligations Law 15-301 [1]; 99 Realty Co. v. Eikenberry, 242 AD2d 215, 660 NYS2d 583). While there may be circumstances where partial performance of an oral modification may avoid the requirement of a writing, the partial performance must be unequivocally referable to the claimed modification (see, Rose v. Spa Realty Assoc., 42 NY2d 338, 397 NYS2d 922, 366 NE2d 1279). Principles of equitable estoppel may also be invoked to avoid the requirement of a writing. However, "[c]omparable to the requirement that partial performance be unequivocally referable to the oral modification, so, too, conduct relied upon to establish estoppel must not otherwise be compatible with the agreement as written [citation omitted]" (id. at 344, 397 NYS2d 922, 366 NE2d 1279). Here, tenant has failed to demonstrate that the claimed oral modification is enforceable under either the concept of partial performance or equitable estoppel.

* * *

This brings us to the issue of tenant's letter to landlord purportedly confirming their oral agreement. What is apparent is that tenant's self-serving letter may not support the claimed modification since "[u]nanswered written communications are not, ordinarily, admissible in evidence against the person addressed, as admissions of the truth of a statement contained therein" (Prince-Richardson on Evidence, 11th ed., § 8-224 at 537). That tenant's letter lacks any probative value is highlighted by the fact that it was mailed just days before tenant vacated the premises. When juxtaposed against landlord's immediate commencement of this action, it cannot be said that landlord admitted the existence of the purported agreement by remaining silent in the face of the [*10]letter. To the contrary, landlord's conduct evinced an immediate rejection of any purported agreement to modify the lease (Id at 588-89).

Moreover, in the case of Rose v. Spa Realty Associates, 42 NY2d 338, 397 NYS2d 922 [1977], the court stated that:

[p]arties to a written agreement who include a proscription against oral modification are protected by subdivision 1 of section 15-301 of the General Obligations Law. Any contract containing such a clause "cannot be changed by an executory agreement unless such executory agreement is in writing and signed by the party against whom enforcement * * * is sought". Put otherwise, if the only proof of an alleged agreement to deviate from a written contract is the oral exchanges between the parties, the writing controls. Thus, the authenticity of any amendment is ensured ( DFI Communications v. Greenberg, 41 NY2d 602, 606-607, 394 NYS2d 586, 589-590, 363 NE2d 312, 315-316).

On the other hand, when the oral agreement to modify has in fact been acted upon to completion, the same need to protect the integrity of the written agreement from false claims of modification does not arise. In such case, not only may past oral discussions be relied upon to test the alleged modification, but the actions taken may demonstrate, objectively, the nature and extent of the modifications. Moreover, apart from statute, a contract once made can be unmade, and a contractual prohibition against oral modification may itself be waived ( Beatty v. Guggenheim Exploration Co., 225 NY 380, 387-388, 122 N.E. 378, 380-381). Thus, section 15-301 nullifies only "executory" oral modification. Once executed, the oral modification may be proved. (E. g., Velveray Corp. v. Jolo Plastics Corp., 19 AD2d 69, 70-71, 241 NYS2d 377, 378-379, affd. 13 NY2d 1165, 247 NYS2d 389, 196 NE2d 738; Semerad, Practice Commentary, McKinney's Cons. Laws of NY, Book 23A, General Obligations Law, s 15-301, p. 588; see, generally, 10 N.J.Jur., Contracts, s 404.)

Where there is partial performance of the oral modification sought to be enforced, the likelihood that false claims would go undetected is similarly diminished. Here, too, the court may consider not only past oral exchanges, but also the conduct of the parties. But only if the partial performance be unequivocally referable to the oral modification is the requirement *344 of a writing under section 15-301 avoided (see, e.g., Bakhshandeh v. American Cyanamid Co., 8 AD2d 35, 38, 185 NYS2d 635, 638, affd. 8 NY2d 981, 204 NYS2d 881, 169 NE2d 188; Bright Radio Labs. v. Coastal Commercial Corp., 4 AD2d 491, 494, 166 NYS2d 906, 909, affd. 4 NY2d 1021, 177 NYS2d 526, 152 NE2d 543; cf. on the parallel rule governing the Statute of Frauds, Walter v. Hoffman, 267 NY 365, 369, 196 N.E. 291, 292; Burns v. McCormick, 233 NY 230, 232, 234, 135 N.E. 273, 274; McKinely v. Hessen, 202 NY 24, 30, 95 N.E. 32, 34; 56 NY Jur., Statute of Frauds, ss 245, 246).

There is, however, another qualification to the mandates of section 15-301. Analytically distinct from the doctrine of partial performance, there is the principle of equitable estoppel. Once a party to a written agreement has induced another's significant and substantial reliance upon an oral modification, the first party may be estopped from invoking the statute to bar proof of that oral [*11]modification (see, e. g., Zolar Pub. Co. v. Doubleday & Co., 2 Cir., 529 F.2d 663, 667-668; cf. Imperator Realty Co. v. Tull, 228 NY 447, 453, 127 N.E. 263, 265; Thompson v. Poor, 147 NY 402, 409-410, 42 N.E. 13, 14-15; Gray v. Met Contr. Corp., 4 AD2d 495, 497, 167 NYS2d 498, 501; The Savage is Loose Co. v. United Artists Theatre Circuit, D.C., 413 F.Supp., 555,559). Comparable to the requirement that partial performance be unequivocally referable to the oral modification, so, too, conduct relied upon to establish estoppel must not otherwise be compatible with the agreement as written (citation omitted) ( Id at 926-27).

In the instant case, the contention of an oral modification, equitable estoppel or partial performance is belied by the documentary evidence. First, the petitioner in the letter dated November 4, 2008 informed the respondent that they were holding them to their cancellation of the lease and expected respondent to vacate the subject premises on April 30, 2009, that Article 17 required the respondent-tenant to pay two times the rent and additional rent if said respondent held over after April 30, 2009 and that the petitioner-landlord had entered into a succeeding lease for the subject premises. Second, a copy of an executed lease dated October 31, 2008 between petitioner and St. Mary's Hospital for Children, a non-party evidences petitioner's intention and conduct to hold respondent to its cancellation of the herein lease and vacatur of the subject premises on April 30, 2009. As petitioner avers in reply, the St. Mary's Hospital lease penalizes the petitioner with a rent abatement if the subject premises is not turned over to St. Mary's by July 1, 2009 (see Exhibit 4 to Andrew Newman's affidavit, paragraph 2[C]) and ultimately gives St. Mary's Hospital the right to terminate the lease if the term of said St. Mary's Hospital lease is not commenced by April 1, 2010 (see paragraph 2[D] to Exhibit 4 to Andrew Newman's affidavit). In fact, respondent was informed by petitioner in the letter dated February 20, 2009 that "[u]nder the new lease, St. Mary's is entitled to a day-for-day abatement of rent if the Term Commencement Date' thereof does not occur by July 1, 2009; and St. Mary's has the right to cancel the New Lease if the Term Commencement Date' thereof does not occur by April 1, 2010." (Exhibit 7 to Andrew Newman's affidavit). The letters and actions of the petitioner are inconsistent with respondent's contention of an oral modification or an agreement to extend respondent's termination/cancellation of the herein lease. The self-serving letter of the respondent dated November 14, 2008 cannot be read as a memorialization of an extension of respondent's time to vacate the subject premises. Said self-serving letter is not admissible and lacks probative value just as in the Joseph P. Day Realty Corp case. At best, the language [FN1] from the letter dated November 14, 2008 from respondent to petitioner is an offer to permit respondent to vacate the subject premises sometime later than April 30, 2009. It is clear as petitioner points out that they were not privy to this apparent arrangement between respondent and St. Mary's Hospital and did not approve of same. It is of no consequence that there is an almost three month gap between the November 14, 2008 letter and the February 4, 2009 letter. Respondent has offered no evidentiary support for its contention of an oral modification as well as the three month gap inducing respondent to act "to its detriment." In addition, there are missing essential terms to said modification that evidence that there was no contract, oral or in writing, that extended [*12]respondent's time to vacate the subject premises beyond April 30, 2009. In other words, it is simple handbook law that there can be no contract or meeting of the minds without an offer and acceptance and consideration for same (see generally, Arnold v. Gramercy Company, 15 AD2d 762, 224 NYS2d 613 [1st Dept 1962]; Roer v. Cross County Medical Center Corp., 83 AD2d 861, 441 NYS2d 844 [2nd Dept 1981]("It is a fundamental principle of contract law that a valid acceptance must comply with the terms of the offer (see Gram v. Mutual Life Ins. Co. of NY, 300 NY 375, 382, 91 NE2d 307), and, if qualified with conditions, it is equivalent to a rejection and counteroffer"); Two Wall Street Associates Limited Partnership v. Anderson, Raymond & Lowenthal, 183 AD2d 498, 583 NYS2d 436 [1st Dept 1992] (no new contract as just "negotiations or an agreement to agree" without consideration for said alleged new contract)). Here, there is no acceptance of respondent's offer to extend. It was thus unreasonable for respondent to rely upon its own offer in the face of the intentions and conduct of the petitioner-landlord that establish respondent had terminated/cancelled the lease and was to vacate on April 30, 2009. It should be noted that the petitioner alleges that after a visual inspection, respondent's new space in Woodbury is simply not ready and was not ready on or before April 30, 2009 (see the Letter dated February 20, 2009 cited earlier in this decision). It should be further noted that the averment that "[t]he construction of our building was progressing and would have been complete and we would have been moved out by the April 30, 2009 date without any problems or issues whatsoever. Instead, at our own substantial cost and at the request of the Landlord, without any obligation to do so and so that the Landlord and St. Mary's would benefit from a great deal of cost and time savings, we agreed to leave over a million dollars worth of fixtures and improvements in the Premises ..." (see the affidavit of John Posillico, Special Projects Manager of respondent at paragraph 21) is without evidentiary support that would establish respondent's contentions and defenses herein as a matter of law.

To the extent not discussed herein, respondent's remaining contentions have been considered and found to be without merit.

For the foregoing reasons mentioned above, petitioner is entitled to a judgment of possession and monetary judgment for use and occupation [FN2] in the sum of four hundred fifty thousand one hundred ninety dollars and thirty-two ($450,190.32) cents, which includes May, June and July, 2009 and a warrant of eviction with no stay. An inquest as to attorney's fees and additional use and occupation owed shall be held at the Landlord/Tenant part of the First District Court, 99 Main Street, Hempstead, New York 11550 at 9:30am on September 29, 2009.

This constitutes the decision and order of the Court. [*13] SO ORDERED:

DISTRICT COURT JUDGE

Dated: September 23, 2009

cc:

Footnotes

Footnote 1: "It is our understanding from those conversations that St. Mary's is willing to be flexible regarding our move out schedule and will not require that we vacate the premises on exactly the April 30, 2009 date. We will assume this arrangement is acceptable to you."

Footnote 2: Contrary to respondent's contention in its cross-motion that the provision obligating the tenant to pay two times the monthly rent is unenforceable, the court in the Thirty-Third Equities Company LLC v. Americo Group, Inc., 294 AD2d 222, 743 NYS2d 10 [1st Dept 2002] case "reject[ed] the tenant's claim that the holdover clause in question constitutes an unenforceable penalty" and held that said tenant was subject to a clause of that lease obligating tenant to pay use and occupation of two and one-half times monthly rent if said tenant held over.