Fowler v. Island Properties, LLC, 2005-10448.

• Decision Date: 27 March 2007
• Docket Number: 2005-10448.,2006-01452.
• Citation: 2007 NY Slip Op 02699,38 A.D.3d 831,833 N.Y.S.2d 146
• Court: New York Supreme Court — Appellate Division
• Parties: FOWLER, RODRIGUEZ, KINGSMILL, FLINT, GRAY & CHALOS, LLP, Appellant, v. ISLAND PROPERTIES, LLC, Respondent.

38 A.D.3d 831

833 N.Y.S.2d 146

2007 NY Slip Op 02699

FOWLER, RODRIGUEZ, KINGSMILL, FLINT, GRAY & CHALOS, LLP, Appellant, v. ISLAND PROPERTIES, LLC, Respondent.

2005-10448.

2006-01452.

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

Decided March 27, 2007.

In an action, inter alia, to recover damages for breach of a commercial lease, the plaintiff appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Nassau County (O'Connell, J.), dated September 28, 2005, as granted those branches of the defendant's motion which were for summary judgment dismissing the cause of action to recover damages for breach of a commercial lease and, in effect, for summary judgment on so much of the counterclaim as sought to recover attorneys' fees, and (2) an order of the same court dated November 23, 2005, which determined that the defendant was entitled to the sum of $75,000 in attorneys' fees.

Ordered that the order dated September 28, 2005 is reversed insofar as appealed from, on the law, and those branches of the defendant's motion which were for summary judgment dismissing the cause of action to recover damages for breach of a commercial lease and for summary judgment on so much of the counterclaim as sought to recover attorney's fees are denied; and it is further,

Ordered that the order dated November 23, 2005 is reversed, on the law; and it is further,

Ordered that one bill of costs is awarded to the appellant.

In May 1999 the plaintiff's predecessor in interest, the Chalos Law Firm, LLC (hereinafter the Chalos Firm), entered into a written lease with the defendant for office space on the third floor of a commercial building (hereinafter the original lease). In August 2000 the Chalos Firm, in need of room for expansion, entered into a lease with the defendant for additional office space at an adjacent building (hereinafter the second lease). Pursuant to the second lease, the defendant agreed, inter alia, to make substantial improvements, including the construction of an enclosed pedestrian walkway connecting the two properties at the third floor. The term of the second lease was to commence on October 1, 2000, or the date of "substantial completion" of the promised improvements, which was to be determined "at Landlord's sole discretion."

In March 2002 the plaintiff commenced this action, inter alia, to recover damages for breach of the second lease. The plaintiff alleged that, despite due demand, the defendant had failed to timely complete the promised improvements, making occupancy of the additional space impossible, and, in effect, requiring relocation of the Chalos Firm and vacatur of existing leased space.

The defendant answered and moved for summary judgment, inter alia, dismissing the complaint. The defendant noted that section 24 of the second lease exculpated it from all damages arising from a delay in giving possession. In this respect, the defendant asserted that significant unforeseen delays had arisen due to "serious structural problems" with the subject properties, which were revealed only during demolition, and by "a multitude of other...