Rosenberg & Estis, P.C. Obtains Unanimous Dismissal Of Multi-Million Dollar Damages Claims And Is Awarded Attorneys Fees By The First Department


Victory on Appeal Concludes Successful Representation of Landlord in a Commercial Lease Dispute Over Valuable Times Square Restaurant Premises


For Immediate Release

Shea Communications, LLC
George Shea, Mark Faris (212) 627-5766

Rosenberg & Estis, P.C.’s award-winning litigation team was victorious at the Appellate Division, First Department, in upholding an order of Supreme Court (Hon. Margaret A. Chan), which denied tenant’s motion to amend its complaint and dismissed tenant’s damages claims.

Luise A. Barrack, managing member, Brett B. Theis, member, associate, of Rosenberg & Estis, P.C. represented the landlord.

After R&E obtained a judgment ejecting tenant from its Times Square restaurant and an $800,000 money judgment for its client, tenant moved to amend its complaint to assert various additional contract claims and to increase the amount of its alleged damages by $3 million. The Appellate Division agreed with each of R&E’s arguments on appeal and affirmed Supreme Court’s denial of tenant’s motion to amend, citing prejudice to landlord and tenant’s delay in seeking leave to amend. The Appellate Division also agreed that tenant’s existing claims, including an alleged breach of covenant of quiet enjoyment, entirely lacked merit and were properly dismissed because tenant elected its remedy when it stopped paying rent and could no longer sue for damages. Accordingly, the Appellate Division upheld Supreme Court’s ruling that tenant did not possess any claims and that the sole remaining claim in this action is the amount of landlord’s attorneys’ fees, to be established at a hearing.

“This case serves as a reminder that a tenant’s failure to pay rent forecloses any claim based upon an alleged breach of the covenant of quiet enjoyment,” said Theis. “Also, while leave to amend is freely granted, such a motion can be defeated by a showing of prejudice and undue delay. Both Supreme Court and the Appellate Division recognized the merit of our arguments and refused to allow the tenant to proceed with additional meritless litigation.”