Vermont Teddy Bear Co. v. 538 Madison Realty Co.

308 A.D.2d 33, 761 N.Y.S.2d 620, 2003 N.Y. App. Div. LEXIS 6199
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 3, 2003
StatusPublished
Cited by2 cases

This text of 308 A.D.2d 33 (Vermont Teddy Bear Co. v. 538 Madison Realty Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vermont Teddy Bear Co. v. 538 Madison Realty Co., 308 A.D.2d 33, 761 N.Y.S.2d 620, 2003 N.Y. App. Div. LEXIS 6199 (N.Y. Ct. App. 2003).

Opinions

OPINION OF THE COURT

Saxe, J.

The central issue on this appeal is the correct construction of the parties’ commercial lease regarding their respective rights and obligations after a substantial casualty rendered the leased premises unusable. Its resolution requires consideration of competing rules of contract construction.

Defendant 538 Madison Realty Company owns the five-story building located at 538 Madison Avenue in midtown Manhattan. The Vermont Teddy Bear Co., Inc. was the tenant of the building’s first-floor retail space under a 10-year lease agreement dated October 24, 1996. On December 7, 1997, a large portion of the southern facade of the adjacent building collapsed onto 538 Madison, causing substantial structural damage to 538 as well as a shutdown of the surrounding area. It is undisputed that the collapse rendered the leased premises unusable by the tenant.

Pursuant to article 9 of the lease, if the premises were rendered wholly unusable, the tenant’s rent obligation would cease from that time forward, and would not resume until five days after written notice from the landlord that the premises were substantially ready for reoccupancy. Moreover, paragraph 3 of the rider to the lease gave the tenant, in these circumstances, the option to furnish the landlord with written notice of the tenant’s election to terminate the lease if the premises were not restored within one year after the landlord’s receipt of the notice.

On December 16, 1997, plaintiff wrote a letter to defendant’s managing agent in which plaintiff, among other things, provided notice that, pursuant to paragraph 3 of the lease rider, it intended to terminate the lease if the premises were not restored within one year.

An initial question is raised by defendant as to whether this letter may even serve as the requisite predicate for termina[35]*35tion, since it was not sent in accordance with the lease provisions concerning notice, which require that notice be sent by certified or registered mail to the landlord at a specified address as well as to designated counsel. However, defendant’s failure to object promptly to the form or manner of delivery of plaintiffs notice, and, indeed, its response to the substance of the notice, demonstrates a waiver of the defect (see Rower v West Chamson Corp., 210 AD2d 7 [1994]).

Having determined that plaintiffs notice was sufficient, the question is whether defendant’s subsequent conduct successfully forestalled the contemplated termination in the manner required by the lease.

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Related

Vermont Teddy Bear Co. v. 538 Madison Realty Co.
807 N.E.2d 876 (New York Court of Appeals, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
308 A.D.2d 33, 761 N.Y.S.2d 620, 2003 N.Y. App. Div. LEXIS 6199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vermont-teddy-bear-co-v-538-madison-realty-co-nyappdiv-2003.