SHUT DOWN ORDERS DIDN’T IMPACT OFFICE SPACE?
After a New York County Supreme Court judge found that the pandemic excused the tenant’s nonpayment of rent, an appeal to the Appellate Division, First Department, followed.
Because the lease provided that the tenant could only use the subject space "for general, executive and administrative offices and for no other purpose." And given that the agreement also provided “that tenant's obligations under the lease ‘shall in no way be affected, impaired or excused because [plaintiff] is unable to fulfill any of its obligations under this lease . . . if [plaintiff] is prevented or delayed from doing so by reason of . . . government preemption or restrictions,’” the AD1 concluded that the tenant’s rent-payment obligations were not suspended or excused, and that relief in its favor had been inappropriately granted.
And because the tenant failed to give a 90-day notice to vacate and didn’t pay all rent due through the vacate date, the guarantor was also not afforded any solace. As the AD1 observed, “Tenant was not forced to shut down the subject premises to the public, as the subject premises was never open to the public for any services but merely served as office space for tenant. Therefore, defendant guarantor is not relieved of its obligations under the guaranty.”
We’re going to shut it down right there.
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DECISION