BBG News

Decision of Interest – Commercial Lease Dispute

Sep 12, 2022

In a recent Supreme Court, New York County action commenced by a high-end retail tenant against its landlord, BBG successfully obtained for the landlord a judgment for nearly $1.4Million of rent owed by the retail tenant, an order permitting the landlord to recover its attorneys’ fees and the dismissal of all the retail tenant’s claims against the landlord. Partner, Jeffrey Levine, and Associate, Brian Bendy, handled the litigation.

The litigation involved claims by the retail tenant seeking, among other things, (i) a declaration that its lease was void and should be rescinded due to the frustration of purpose, impossibility of performance, and failure of consideration and (ii) damages resulting from the landlord’s alleged breach of the lease, private nuisance and nuisance per se. In asserting those claims, the retail tenant relied, in part, upon its allegation that certain outdoor restaurant seating that the landlord had allowed to be installed during the Covid-19 pandemic had obstructed and interfered with the retail tenant’s operation of its retail store, thereby relieving it of any obligation to pay rent and entitling it to recover monetary damages from the landlord. BBG responded by filing counterclaims against the retail tenant seeking recovery of nearly $1.4Million in rent owed and reimbursement of the landlord’s attorneys’ fees. Thereafter, BBG filed a motions seeking dismissal of the retail tenant’s complaint in its entirety, dismissal of the retail tenant’s affirmative defenses to the landlord’s counterclaims for rent and attorneys’ fees, and a judgment on the landlord’s counterclaims for nearly $1.4Million in rent owed plus attorneys’ fees. The retail tenant cross-moved for a judgment in its favor on several of its causes of action. The Court issued a decision granting BBG’s motion in its entirety and denying the retail tenant’s cross-motion in its entirety.This decision demonstrates various complex retail lease issues and disputes that have arisen during the Covid-19 pandemic and the Court’s enforcement of rental obligations under prevailing law.

BBG represents many sophisticated commercial landlords and provides extensive strategic and substantive advice with regard to all commercial lease issues and disputes.

Should you have any questions regarding the case or if we can be of assistance, feel free to contact us at

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