Not a Lexis Advance subscriber? Try it out for free.

Jack Kelly Partners LLC v Zegelstein

Supreme Court of New York, Appellate Division, First Department

May 12, 2016; May 12, 2016, Filed

600351/08, 16647

Opinion

 [**7]  [*81]  Tom, J.P.

Plaintiff, as tenant, and defendants, as owner, entered into a commercial lease agreement dated March 7, 2006 for second floor space of a building located at 210 East 60th Street in Manhattan for a term of five years and two months, commencing March 1, 2006, at a monthly rent of $4,000. Under paragraph 57 (B), the lease stated that "Tenant shall use and occupy the Demised Premises for general offices of an executive recruiting firm" and "no other [***2]  [**8]  purpose." Paragraph 57 (A) provides that plaintiff was not permitted to use the premises in any manner that "violates the certificate of occupancy for the Demised Premises, if any, or for the Building," or that violates any other laws or regulations.

Plaintiff asserts that in December 2007, it discovered that the certificate of occupancy (CO) for the building required that the leased premises be used only for residential purposes. Plaintiff further claims that, it requested defendants to amend and correct the CO to permit the demised premises to be used for commercial purposes, but defendants refused to comply. [****2]  Plaintiff vacated the premises on May 8, 2009 and commenced this action asserting causes of action for rescission, a declaratory judgment that the lease was invalid, unenforceable and illegal, and breach of contract.

Plaintiff's breach of contract claim was dismissed by a prior order of the Supreme Court. Thereafter, the parties moved and cross-moved for summary judgment relating to plaintiff's remaining causes of action, and defendant's counterclaims for breach of contract and breach of the covenant of good faith and fair dealing.

The court denied plaintiff's cross motion for [***3]  summary judgment on its causes of action for rescission and for a declaratory judgment, declared that the lease between the parties was valid and enforceable, and granted defendants' motion for summary [*82]  judgment dismissing the complaint and granting them judgment on their counterclaim for breach of contract.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

140 A.D.3d 79 *; 33 N.Y.S.3d 7 **; 2016 N.Y. App. Div. LEXIS 3635 ***; 2016 NY Slip Op 03820 ****; 2016 WL 2746139

 [****1]  Jack Kelly Partners LLC, Appellant, v Elsa Zegelstein et al., Respondents.

Subsequent History: Leave to appeal dismissed by Jack Kelly Partners LLC v Zegelstein, 28 NY3d 1103, 2016 N.Y. LEXIS 3875, 45 NYS3d 364, 68 NE3d 92 (N.Y., Dec. 22, 2016)

Prior History: Appeal from an order of the Supreme Court, New York County (Paul Wooten, J.), entered October 23, 2014. The order, to the extent appealed from, denied plaintiff's cross motion for summary judgment on its causes of action for rescission and for a declaratory judgment, declared that the lease between the parties is valid and enforceable, and granted defendants' motion for summary judgment dismissing the amended complaint and for summary judgment on their breach of contract counterclaim.

Jack Kelly Partners LLC v Zegelstein, 2014 N.Y. Misc. LEXIS 6088 (N.Y. Sup. Ct., Oct. 15, 2014), modified.

CORE TERMS

lease, premises, tenant, defendants', rescission, space, parties, demised premises, vacated, summary judgment, cause of action, commercial use, certificate of occupancy, summary judgment motion, breach of contract, issue of fact, terminate

Contracts Law, Defenses, Affirmative Defenses, Fraud & Misrepresentation, Remedies, Rescission & Redhibition, Business & Corporate Compliance, Standards of Performance, Impossibility of Performance, Frustration of Purpose