80 State Street, LLC v. Allwen, Inc.
| Decision Date | 22 April 2004 |
| Docket Number | 94964. |
| Citation | 6 A.D.3d 978,774 N.Y.S.2d 889,2004 NY Slip Op 03000 |
| Parties | 80 STATE STREET, LLC, Respondent, v. ALLWEN, INC., Doing Business as WENDY'S, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Appeal from an order of the Supreme Court (Benza, J.), entered January 30, 2003 in Albany County, which granted plaintiff's motion for summary judgment.
Plaintiff brought this action seeking damages arising from an alleged breach of a lease by defendant. In August 1999, defendant entered into a 10-year lease to rent premises owned by plaintiff in the City of Albany, where it intended to operate a Wendy's restaurant. The lease contained a provision permitting defendant to terminate the lease after five years. However, defendant closed the Wendy's and vacated the premises on December 14, 2001. Within a few days, defendant allegedly returned the keys to plaintiff and had its attorney write a letter notifying plaintiff that it had vacated the premises and inquiring how plaintiff planned to proceed. Plaintiff responded in early January 2002, setting forth the amounts due under the lease up to the five-year early termination date and demanding payment. Defendant failed to respond. Plaintiff then commenced this action and subsequently moved for summary judgment, which was granted. Defendant appeals.
We find no merit in defendant's contention that its actions were justified because its restaurant was not profitable. Defendant's broad assertion that plaintiff represented that the location would be profitable is of no moment. This lease between sophisticated business entities makes no reference to a guaranteed minimum level of profitability and the merger provision in the lease precludes resorting to extrinsic proof (see Matter of Primex Intl. Corp. v Wal-Mart Stores, 89 NY2d 594, 599-600 [1997]; W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]).
Nor does the fact that defendant returned its keys to the premises to plaintiff raise an issue of fact under the circumstances. A landlord's retention of keys returned by a tenant who leaves leased premises does not establish an acceptance of a surrender unless accompanied by additional evidence reflecting an intent by both parties to terminate the lease (see Thomas v Nelson, 69 NY 118, 121 [1877]; 2 NY PJI 1117 [2004]; 2 Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 26:20, at 296-297 [4th ed]; cf. Brock Enters. v Dunham's Bay Boat Co., 292...
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In re Sandra Rothman, SLP, P.C., Case No.: 07-71129-478 (Bankr. E.D.N.Y. 8/2/2007)
...keys to leased premises, standing alone, does not constitute acceptance of an offer of surrender. 80 State Street, LLC v. Allwen, Inc., 6 A.D.3d 978, 979, 774 N.Y.S.2d 889, 890 (2004). If anything, TAT's actions conflict with and do not support the Debtor's allegations that TAT accepted Deb......
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White Plains Galleria L.T.D. Partnership v. Woodlawn Partners, 2004 NY Slip Op 50811(U) (NY 8/3/2004)
...of profitability and the merger clause contained therein precludes resort to extrinsic evidence (see 80 State Street, LLC v. Allwen, Inc. d/b/a Wendy's, 6 A.D.3d 978 [3rd Dept. 2004]). Having failed to negotiate the appropriate protective language, the respondent can be said to have willing......
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Kings Holdings LLC v. Terrick
...of law.” Ford Coyle Props., Inc. V. 3029 Avenue v. Realty, 63 A.D.3d 782, 881 N.Y.S.2d 146 (2d Dept.2009); 80 State Street v. Allwen. 6 A.D.3d 978, 774 N.Y.S.2d 889 (2d Dept.2004) (plaintiff needs to take possession or obtain a new tenant in order to evince an intent to accept the surrender......
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233-5 Realty LLC v. Sheehan
...in September 2010 (see generally Stahl Assoc. Co. v. Mapes, 111 A.D.2d 626, 630, 490 N.Y.S.2d 12; cf. 80 State St. v. Allwen, Inc., 6 A.D.3d 978, 978-979, 774Page 4N.Y.S.2d 889). Additionally, as a general rule, "under CPLR 3212 (f), 'where facts essential to justify opposition to a motion ......