Decisions of Interest
100 Queens Boulevard Associates LLC v. G & C Coffee Shop 841 N.Y.S.2d 821 (A.T.2&11, 2007)
In this case we represented the landlord in summary holdover proceeding commenced because the commercial tenant had committed a nuisance and also breached the lease. The proceeding was settled by stipulation. The stipulation provided for various acts to be performed by the tenant, and that if the tenant defaulted, it could be evicted after the service of a Notice to Cure Default. The stipulation specifically provides that "Time Is Of The Essence" and that any breach would be deemed a "Material Breach".
To cure, the tenant not only had to perform the required act, but had to pay $100.00 in attorneys fees for each Notice to Cure served. The tenant defaulted several time and on each occasion did the act, but did not pay the $100.00. For example, the tenant failed to pay real estate taxes, was served with a Notice to Cure and within the Cure period paid the real estate taxes. However, the tenant did not pay the $100.00. Based on the failure to pay for the Notice to Cure, the tenant was evicted. The tenant obtained a post-eviction Order to Show Cause which was denied as the court held that there was no basis for granting the motion, even though the default was for a minimal amount, based on the wording of the stipulation.
The tenant appealed, however, the Appellate Court affirmed the lower court's decision. Based on the terms of the stipulation, the courts held that no default was de minimus.