CB Direct Store 4012, Inc. v. 40-12 Main St., LLC

Opinion

CB Direct Store 4012, Inc. v 40-12 Main St., LLC

2026 NY Slip Op 05075

August 26, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

CB Direct Store 4012, Inc., respondent,

v

40-12 Main Street, LLC, appellant.

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

Decided on August 26, 2026

2025-03904, (Index No. 719317/22)

Mark C. Dillon, J.P.

Deborah A. Dowling

Janice A. Taylor

James P. McCormack, JJ.

Law Offices of Fuqiang Zhang, P.C., Flushing, NY (Andrew D. Solomon of counsel), for appellant.

Law Office of Brandon Walters, PLLC, New York, NY, for respondent.

[*1]

DECISION & ORDER

In an action, inter alia, to recover a security deposit and prepaid rent on a commercial lease, the defendant appeals from an order of the Supreme Court, Queens County (Robert I. Caloras, J.), dated February 11, 2025. The order granted the plaintiff's motion for summary judgment on the complaint and declaring that the subject lease is null and void.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment, inter alia, making an appropriate declaration in accordance herewith.

On or about November 30, 2021, the parties executed a commercial lease wherein the plaintiff was granted tenancy in a building owned by the defendant (hereinafter the premises). The lease was "made effective" December 1, 2021, and the term began on the same date and ended on December 31, 2031.

Notably, the defendant was not obligated to deliver possession of the premises until the premises were vacant, which, according to the lease, was "anticipated for" approximately February 28, 2022. However, paragraph 4.1.1 of the lease (hereinafter the delivery clause) provided that if the vacant possession of the premises had not been delivered to the plaintiff by July 31, 2022, the plaintiff "shall have the one-sided right (but not obligation), subject to a notice of 30 (thirty) days, to withdraw from the LEASE" and, thereafter, the lease would "become automatically nil [sic] and void."

The lease also contained a force majeure clause, which provided, inter alia, that if the premises were destroyed or damaged by fire, to the extent that the damage could not be repaired within 12 months thereafter, either party would have the right to terminate the lease early.

On or about March 17, 2022, the premises were damaged due to a fire in an adjacent building. When the premises were damaged, vacant possession of the premises had not yet been delivered to the plaintiff. Thereafter, by letters dated July 27, 2022, August 2, 2022, and August 30, 2022, the plaintiff informed the defendant that it was electing to withdraw from the lease pursuant to the delivery clause and demanded the return of its security deposit and prepaid rent. In response, [*2]the defendant invoked the force majeure clause, contending, in substance, that the plaintiff could not withdraw from the lease unless the premises were unable to be repaired upon the expiration of the 12-month period following the fire.

Thereafter, the plaintiff commenced this action for a judgment declaring that the lease is null and void and to recover its security deposit and prepaid rent. The defendant joined issue by service of an answer in which it asserted various counterclaims.

The plaintiff moved for summary judgment on the complaint and declaring that the lease is null and void, contending, among other things, that it properly withdrew from the lease pursuant to the delivery clause. The defendant opposed the plaintiff's motion. In an order dated February 11, 2025, the Supreme Court granted the plaintiff's motion. The defendant appeals.

"The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent, and the best evidence of what parties to a written agreement intend is what they say in their writing" (255 Butler Assoc., LLC v 255 Butler, LLC, 208 AD3d 834, 836 [alterations and internal quotation marks omitted]). "A reading of the contract should not render any portion meaningless, and the contract should be read as a whole, with every part interpreted with reference to the whole" (Friends of Wickers Cr. Archeological Site, Inc. v Landing on the Water at Dobbs Ferry Homeowners Assn., Inc., 198 AD3d 728, 729). "Where there is an inconsistency between a specific provision and a general provision of a contract, the specific provision controls" (Andersen v Andersen, 69 AD3d 773, 774; see Muzak Corp. v Hotel Taft Corp., 1 NY2d 42, 46).

"Generally, a force majeure event is an event beyond the control of the parties that prevents performance under a contract and may excuse nonperformance" (Beardslee v Inflection Energy, LLC, 25 NY3d 150, 154; see Kel Kim Corp v Central Mkts., 70 NY2d 900, 902).

Here, the Supreme Court did not err in determining that the plaintiff properly relied on the delivery clause in withdrawing from the lease. Contrary to the defendant's contention, the force majeure clause did not take precedence over the delivery clause. The force majeure clause does not modify, reference, or incorporate the delivery clause and vice versa (see Beardslee v Inflection Energy, LLC, 25 NY3d at 157-158). Rather, the delivery clause gives the plaintiff the one-sided right to terminate the lease where vacant possession of the premises had not been delivered by July 31, 2022, as occurred here, while the force majeure clause gives either party the right to terminate the lease after the end of a 12-month period following a fire or similar occurrence. In other words, nothing in the language of the force majeure clause supersedes the delivery clause (see id. at 158).

Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the complaint and declaring that the lease is null and void.

Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Queens County, for the entry of a judgment, inter alia, declaring that the lease is null and void (see Lanza v Wagner, 11 NY2d 317, 334).

In light of the foregoing, we need not reach the parties' remaining contentions.

DILLON, J.P., DOWLING, TAYLOR and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court