the Lessee defaults in paying rent, assessments, additional rent or other charges, the
Lessee shall also pay interest on the unpaid amount at the lesser of (i) 1-1/2% per month
or (ii) the maximum rate permissible by law, from the date when such installment
shall have become due to the date of payment thereof. The late charge imposed by
Lessor's Board of Directors and such interest shall also be deemed additional rent
hereunder (emphases added).
The only material differences
between the two provisions are the addition of a 1.5% [*13]monthly interest rate and $50.00 monthly late charge as of
May 2010 (5/16 1393:13-1394:8).[FN17]
With respect to the interest rate, the first interest charge appears in the ledger only in May
of 2011, meaning that any difference between permissible interest charges in the Lease
and Amended Lease is irrelevant.
As to the charges imposed, even factoring in the late fees, the amounts assessed are
below the maximum rate of interest permitted by law, and are therefore permissible (Tsabbar v 17 E. 89th St. Tenants,
Inc., 17 Misc 3d 1113(A) [Sup Ct NY County 2007], citing 815 Park
Avenue Owners Corp. v Lapidus, 227 AD2d 353 [1st Dept 1996] [permitting the
imposition of interest at the rate of 1.5% monthly]; cf Bonham Strand, LLC v Paredes, 57 Misc 3d 1217(A)
[Just Ct Westchester County 2017] [finding 5% late fee unconscionable], citing
Raanana Realty Corp. v Louis Rotondi Rest. Corp., 1991 NY Misc. LEXIS 886, at
*5 [Civ Ct NY County] [finding a 4% monthly interest rate "confiscatory in nature,
unreasonable, unconscionable and unenforceable"]). For example, by this Court's
calculations, the total penalties, including interest rates and late fees, in 2012 amount to
$16,025.00, or 11.27% of the $147,487.15 owed by the end of 2012.[FN18]