Patrick McCormick, Esq.

  • Commercial Tenant “had a meaningful choice to walk away”: Court Rejects Unconscionability Arguments Regarding Late Charges and Electricity Charges

        Published in the Suffolk Lawyer, January 2017 By Patrick McCormick, Esq. Email Pat December 20, 2016 In 2010, the First Department, in dismissing a claim by commercial tenants that electric charges were unconscionable,  held that the plaintiffs had failed to establish “a lack of meaningful choice, and noted that the commercial tenants were free to not rent from the defendant and go elsewhere.” Thus, when I represented a commercial landlord in a non-payment proceeding against a law firm tenant earlier this year, it was unclear where a court within the Second Department – in this case, the First District Court in Nassau County – would fall ...

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    Tuesday, December 20th, 2016

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  • Landlord’s Self-Help and Charging for Capital Improvements: A Busy Fall at the Appellate Division, First and Second Departments

    By Patrick McCormick, Esq. December 21, 2015 The Appellate Courts have been busy this fall rendering significant decisions involving landlord/tenant law.  Two decisions of interest are discussed below. The first is a decision by the Appellate Term, Second Department involving a landlord who engaged in self-help to regain possession of the commercial demised premises at issue.  The tenant commenced an unlawful entry and detainer summary proceeding under RPAPL §713(10), and apparently the landlord engaged in self-help to regain possession of the demised premises after commencement of the proceeding. The court recognized a landlord’s right to engage in self-help, provided such is authorized by the ...

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    Friday, December 18th, 2015

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  • Recent Landlord Tenant Case Developments

    By Patrick McCormick, Esq. April 20, 2015 Three recent decisions, two from the Supreme Court, Appellate Term, First Department and the third from Supreme Court, Queens County (Ritholtz, J.) are instructive to landlord/tenant practitioners.  The first involves an application by a tenant for a Yellowstone injunction; the second involves a tenant’s renewal option contained in a commercial lease; and, the third involves enforcement of a settlement agreement. A Yellowstone injunction is a procedural mechanism used by tenants to maintain the status quo and to toll the running of a cure period so that a commercial tenant confronted by threat of termination of its ...

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    Monday, April 20th, 2015

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  • Court of Appeals Enforces Rent Acceleration Clause in Commercial Lease

    By Patrick McCormick, Esq. January 28, 2015 Commercial landlord/tenant matters do not often reach the Court of Appeals. However, in December 2014, the Court of Appeals issued a decision addressing the enforceability of a rent acceleration clause in a commercial lease where the landlord obtained possession of the demised premises after tenant defaulted in paying rent and abandoned the premises.  Landlord/tenant practitioners should be aware of this significant decision. Landord, 172 Duzer Realty Corp., entered into a one year commercial lease with tenant Globe Alumni Student Assistance Association, Inc. under which the premises was used as a dormitory by Globe Institute of Technology.  Before ...

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    Wednesday, January 28th, 2015

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  • Enforcing a Personal Guaranty of a Commercial Lease

    By Patrick McCormick, Esq. December 19, 2014 For obvious reasons, commercial landlords routinely insist that a commercial tenant provide a personal guaranty of the payment and performance obligations of the tenant. It is not surprising that litigation often arises between the landlord and the guarantor upon the default by the tenant with a common defense being that the terms of the guaranty were not intended to cover the specific default at issue. The general rule is that a personal guaranty is to be strictly construed and a “guarantor should not be bound beyond the express terms of his guarantee.”  As a result, to help ...

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    Friday, December 19th, 2014

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  • Is Prepaid Rent Recoverable if a Lease Terminates Early?

    By Patrick McCormick, Esq. June 23, 2014 What happens when rent is prepaid under a lease but the lease is purportedly terminated prior to the expiration of the term? The Court of Appeals in Eujoy Realty Corp. v. Wagner Communications, LLC addressed this issue.1 Landlord Eujoy owned a building in Queens with a steel frame structure on the roof for the placement of billboard advertisements. Tenant Van Wagner considered the billboard desirable because of its visibility to passing traffic on the Long Island Expressway. Van Wagner leased the billboard for a 15-year term commencing December 1, 2000 and ending September 30, 2015. The lease ...

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    Monday, June 23rd, 2014

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  • Subtenant’s Liability for Holding Over After Termination of Its Sublease

    By Patrick McCormick, Esq. March 27, 2014 Who is responsible for the damages that result when a commercial sub-tenant holds over past the expiration of its term causing the tenant to incur damages under its lease? In what appears to be a case of first impression in the Second Department, in PHH Mtge. Corp. v. Ferro, Kuba, Mangano, Sklyar, Gacovino Lake, P.C.1 the Appellate Division has confirmed that, with appropriate lease clauses, the sub-tenant is liable for the damages incurred by the tenant resulting from the sub-tenant’s failure timely to vacate the premises it occupied. The facts in PHH are simple enough: Owner/Landlord leased ...

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    Sunday, March 09th, 2014

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  • Around the Appellate Bench: Part 2

    By Patrick McCormick, Esq. January 18, 2014 There have been several interesting Appellate Court decisions in the past couple of months touching on a variety of issues. Cases discussing actual partial eviction, successor landlord liability and a tenant’s failure to timely cure an alleged default are discussed below. In Croxton Collaborative Architects, P.C. v. T-C 475 Fifth Avenue, LLC,1 a commercial tenant sued its successor landlord alleging it was damaged because defendant landlord failed to remediate the “derelict” and “war-torn appearance” of the premises, which was caused by renovation work commenced by the prior landlord, in breach of the lease. Plaintiff commenced the ...

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    Thursday, January 09th, 2014

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  • Around the Appellate Bench

    By Patrick McCormick, Esq. December 19, 2013 In a decision dated November 13, 2013, the Appellate Division, Second Department decided a case involving a contractor, Matell Contracting Co., Inc., who performed work for a commercial tenant, attempting to enforce a mechanic’s lien against the owner of property, Fleetwood Park Development Co. 1 Fleetwood leased certain property to a new tenant and, pursuant to an agreement with the new tenant, permitted the tenant to renovate the leased property for use as a supermarket. The tenant retained Matell Contracting as general contractor. The tenant failed to pay $1,800,000 allegedly due for work performed by Matell ...

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    Monday, December 09th, 2013

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  • Well Settled Legal Principles and Proof Required to Prevail

    By Patrick McCormick, Esq. November 25, 2013 Three recent appellate decisions, each sparse on fact, nevertheless remind us of the relevance of well settled legal principles and confirm the proof required to prevail on each.The first, Tewksbury Management Group, LLC v. Rogers Investments NV LP1, involves application of the doctrine of res judicata; the second, Bonacasa Realty Company, LLC v. Salvatore2, discusses the concept of piercing the corporate veil; and the third, MH Residential 1, LLC MH v. Barrett3, inter alia, discovery. In Tewksbury, the commercial tenant commenced an action against its landlord claiming landlord breached the lease by failing to obtain a valid certificate of occupancy, remove building ...

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    Sunday, November 10th, 2013

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