In its lease with 250 West Broadway Realty Corp., FFE LLC represented it would obtain all permits from the Department of Buildings so that a wine restaurant could be opened on the premises. When FFE's efforts were unsuccessful, 250 filed a holdover proceeding to recover possession of the commercial space.
After the New York County Civil Court granted the landlord's request, FFE appealed to the Appellate Term, First Department, which affirmed the outcome.
The AT1 thought FFE's inability to get the required permits was foreseeable and that the tenant failed to show "impossibility of performance." (Interestingly, the lease provided the tenant with the option to end the arrangement if the required approvals couldn't be secured.)
Due to the unambiguous wording of the parties' agreement, the AT1 rejected FFE's defense of "waiver" and it didn't agree blame for the inability to obtain a new certificate of occupancy could be shifted to the owner.
Did that whine turn?
To view a copy of the Appellate Term's decision, please use this link 250 West Broadway Realty Corp. v. FFE LLC