6243 Jericho Realty Corp. v. Autozone, Inc.

• Decision Date: 07 March 2006
• Docket Number: 2004-05200.
• Citation: 27 A.D.3d 447,813 N.Y.S.2d 95,2006 NY Slip Op 01605
• Parties: 6243 JERICHO REALTY CORP., Respondent, v. AUTOZONE, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

27 A.D.3d 447

813 N.Y.S.2d 95

2006 NY Slip Op 01605

6243 JERICHO REALTY CORP., Respondent, v. AUTOZONE, INC., Appellant.

2004-05200.

Appellate Division of the Supreme Court of the State of New York, Second Department.

March 7, 2006.

In an action to recover damages for breach of a lease, the defendant appeals from an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated May 26, 2004, which granted the plaintiff's motion for summary judgment on the issue of liability, denied its cross motion for summary judgment dismissing the complaint, and directed that the matter be placed on the trial calendar for a trial on the issue of damages.

Ordered that the order is modified, on the law, by deleting the provisions thereof granting the plaintiff's motion for summary judgment and directing that the matter be placed on the trial calendar for a trial on the issue of damages, and substituting therefor a provision denying the plaintiff's motion; as so modified, the order is affirmed, without costs or disbursements.

In January 2001 the plaintiff, as landlord, and the defendant, as tenant, entered into a "Ground Lease" for premises located on Jericho Turnpike in Huntington. The premises consisted of approximately 49,750 square feet of land and, according to the terms of the lease, the tenant's "intended use" of the premises was the "construction of one of its prototypical store buildings measuring approximately 6,800 square feet in floor area and related improvements . . . and operation therein of a retail store selling automotive parts, supplies, and accessories."

Section 29 (A) of the lease provided, in relevant part, that: "Tenant is to have until 210 days following execution of this Ground Lease to receive all authorizations and permits, including, but not limited to, . . . zoning and subdivision interpretations and confirmations, permits and approvals, and all variances, utility permits, authorizations and easements necessary for the Purchaser's (sic) intended use as described herein necessary to build on the Demised Premises (`Approvals,' collectively, hereinafter). If Tenant has not received or is denied or refused any such Approvals necessary to assure that Tenant's intended use and development of the Demised Premises will not be physically or financially impaired, as determined in Tenant's sole discretion, prior to such date, or if the necessary approvals are granted subject to any conditions that Tenant deems will physically or financially impair Tenant's intended use and development of the Demised Premises prior to such date, then Tenant may terminate this Ground Lease...