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DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Tirse v. Andrews, 128 A.D.3d 1112 (2015)

Citation
Tirse v. Andrews, 128 A.D.3d 1112 (2015)
Parent Document
Tirse v. Andrews, 128 A.D.3d 1112 (2015)
Jurisdiction
New York (state)
Effective Date
2015-05-07

Full Text

1,487 chars
Defendants’ argument overlooks the doctrine of anticipatory breach, which relieves a “nonrepudiating party of its obligation of future performance and entitles that party to recover the present value of its damages from the repudiating party’s breach of the total contract” (American List Corp. v U.S. News & World Report, 75 NY2d 38, 44 [1989]; see Pitcher v Benderson-Wainberg Assoc. II, Ltd. Partnership, 277 AD2d 586, 587-588 [2000], lv dismissed 96 NY2d 792 [2001]; Sunshine Steak, Salad & Seafood v W.I.M. Realty, 135 AD2d 891, 892 [1987]). The alleged lease provides that plaintiff was required to pay the first and last month’s rent “prior to taking possession of the [p]remises.” Plaintiff was verbally permitted to access the premises sooner, but he was not entitled to take possession under the alleged lease until December 1, 2011 (see Real Property Law § 223-a). Because plaintiff was barred from taking possession prior to the commencement of the lease term, he was excused from his obligation to make any payment of rent (see Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d *111477, 83-84 [1970]; ZCWK Assoc. v Spadaro, 233 AD2d 126, 127 [1996]). Thus, viewing the evidence in the light most favorable to plaintiff as the nonmoving party, we are persuaded that questions of fact exist as to whether an anticipatory breach occurred (see J.S. Gourmet, Inc. v Bretton Woods Home Owners Assn., Inc., 11 AD3d 583, 584-585 [2004]; ZCWK Assoc. v Spadaro, 233 AD2d at 127).