Federated Retail Holdings, Inc. v. Weatherley 39th Street, LLC

95 A.D.3d 605, 943 N.Y.S.2d 881

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 2012
• Status: Published

Opinion

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered April 11, 2011, granting plaintiff tenant’s motion and declaring it cured a lease default concerning the self-insured retention provisions of commercial insurance policies obtained for the benefit of defendant landlord and that landlord cannot terminate plaintiffs lease based upon that default, unanimously affirmed, with costs.

The primary issue on this appeal is whether tenant was able to cure a lease default caused by the presence of a self-insured retention in the excess/umbrella insurance policies obtained for the benefit of landlord. Landlord makes vague, ultimately irrelevant, policy arguments and cites to an opinion of the New York State Insurance Department which is not binding on any court (see Goll v New York State Bar Assn., 193 AD2d 126, 128 [1993]). Landlord cites no case law, regulation or other rule of law standing for the proposition that a self-insured retention may not be eliminated through the use of an endorsement to the original occurrence based policy, which covers the same policy period. Accordingly, the motion court properly granted the motion and correctly declared that the lease default has been cured and the lease cannot be terminated based upon that default.

We have considered landlord’s remaining arguments and find them unavailing. Concur — Mazzarelli, J.P., Catterson, Richter and Manzanet-Daniels, JJ. [Prior Case History: 32 Mise 3d 247.]

Motion for an order modifying a Yellowstone injunction denied.