Herlou Card Shop, Inc. v. Prudential Insurance

73 A.D.2d 562, 422 N.Y.S.2d 708, 1979 N.Y. App. Div. LEXIS 14335

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1979
• Status: Published

Opinion

— Judgment, Supreme Court, New York County, entered June 6, 1978, in favor of plaintiff for $55,000, with interest and costs, after jury trial, is unanimously reversed, on the law, with costs to defendant, and the complaint is dismissed. This commercial lease expressly provided that it could not be assigned without the landlord’s consent; there was no limitation in the lease that such consent should not be unreasonably withheld. Furthermore, the tenant was several months in default in payment of rent, and pursuant to the provisions of the lease, the landlord had served a notice to terminate the lease. The plaintiff tenant did not have the money to cure the default in rent. In the circumstances, the landlord was merely exercising its legal contractual rights in refusing to consent to an assignment of the lease unless the lease was modified to increase the rent. Such an exercise of the landlord’s legal rights does not constitute economic duress so as to entitle the tenant to damages. (Muller Constr. Co. v New York Tel Co., 40 NY2d 955.) Concur — Bloom, J. P., Markewich, Silverman and Ross, JJ.