2M HOSPITALITY GROUP LLC v. SAHARA PLAZA LLC (2024)

Order, Supreme Court, New York County (Andrew Borrok, J.), entered on or about February 13, 2024, which granted defendant's motion to dismiss the complaint, unanimously affirmed, with costs.

Defendant demonstrated that money damages are barred by article 63 of the parties' commercial lease, which limits plaintiffs' damages, if any, to specific performance, injunction, or declaratory relief.  We reject plaintiff's argument that article 63 is unenforceable as against public policy (see Metropolitan Life Ins. Co. v. Noble Lowndes Intl., 84 N.Y.2d 430, 436, 618 N.Y.S.2d 882, 643 N.E.2d 504 [1994]).  Even drawing all inferences in the light most favorable to plaintiff, the complaint does not allege that defendant engaged in misconduct that would constitute a willful, bad-faith breach of the lease rendering article 63 unenforceable (see Devash LLC v. German Am. Capital Corp., 104 A.D.3d 71, 77, 959 N.Y.S.2d 10 [1st Dept. 2013], lv denied 21 N.Y.3d 863, 2013 WL 4561705 [2013]).  Rather, the complaint alleges that defendant declined to reopen its business after New York State's COVID–19 in-person dining restrictions were lifted.  This decision does not constitute “intentional wrongdoing ․ unrelated to any legitimate economic self-interest,” which would be required to find article 63 unenforceable (compare Devash LLC, 104 A.D.3d at 77, 959 N.Y.S.2d 10, with Banc of Am. Sec. LLC v. Solow Bldg. Co. II, L.L.C., 47 A.D.3d 239, 243, 847 N.Y.S.2d 49 [1st Dept. 2007]).

We have considered plaintiff's remaining contentions and find them unavailing.