Fortis Fin. Servs., LLC v. Fimat Futures USA, Inc.

290 A.D.2d 383, 737 N.Y.S.2d 40 (App. Div. 2002)



On a motion to dismiss pursuant to N.Y. C.P.L.R. 3211(a)(1), the defendant has the burden of showing that the relied-upon documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim.


Plaintiff prime tenant's contract with defendant subtenant required the subtenant to restore the premises to their pre-sublease condition upon vacating. Another provision in the sublease specifically addressed the subtenant's obligation to remove any alterations made in the premises during the subtenancy. After the subtenant left, the prime tenant sought to recover nearly a million dollars that it had to pay the landlord in restoration costs in a breach of action suit. Defendant filed a motion to dismiss, which the court granted. On appeal, the court reversed the order, reinstated the breach of contract claim, and remanded.


Did the trial court err in dismissing plaintiff's breach of contract claim? 




The contractual provision relied upon by defendant fails to establish as a matter of law that defendant, as subtenant, had no contractual liability for any of the $994,140 paid by plaintiff, as prime tenant, to the prime landlord, representing the cost of restoring the subleased premises to their prelease condition. The appeals court held that construing the sublease as a whole, the clause addressing the subtenant's responsibility to remove alterations did not limit the subtenant's additional responsibility to leave the premises as it found them. Therefore, the trial court erred in dismissing the prime tenant's breach of contract claim on the basis of the contractual provision relating to alterations. The contract as a whole unquestionably imposes upon defendant a restoration obligation. This obligation is not only explicitly set forth in section 9 of the sublease, but, in addition,  is imposed by means of section 4 of the sublease, which imposes upon the subtenant all the obligations of the prime tenant with respect to the subleased premises.

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