Leonardi International Corp. v. Altamar Brands, LLC

106 A.D.3d 661, 965 N.Y.S.2d 725

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 2013
• Status: Published

Opinion

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered October 12, 2012, which, insofar as appealed from as limited by the briefs, denied plaintiffs motion for summary judgment on its first cause of action, unanimously affirmed, without costs. Order, same court and Justice, entered October 12, 2012, which, insofar as appealed from as limited by the briefs, granted defendant’s motion for summary judgment dismissing the first cause of action, and denied plaintiffs motion for summary judgment dismissing the first counterclaim, unanimously modified, on the law, to grant plaintiffs motion, and otherwise affirmed, without costs.

The parties’ lease provides that neither party can institute legal action with respect to an act of default under any provision of the lease without first giving the other a notice of default that complies with certain specified conditions. Plaintiff never gave defendant notice of the default on which its first cause of action is predicated (see MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640, 645 [2009]). Defendant provided a notice of default to plaintiff with respect to its first counterclaim, but the notice did not satisfy all the stated conditions. Among other things, it did not describe “the action to be taken or performed by [plaintiff] in order to cure the alleged default.” Concur— Sweeny, J.E, Saxe, Moskowitz, Gische and Clark, JJ.