RENAISSANCE MIDTOWN WEST LLC v. LIVIDINI COMPANY LLC (2026)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered July 24, 2025, which granted defendants' motion to dismiss the amended complaint, unanimously affirmed, without costs.

The amended complaint was properly dismissed for lack of notice under paragraph 17(1) of the parties' lease.  Paragraph 17(1) contains a conditional limitation permitting the landlord to terminate the lease for defaults other than nonpayment of rent— including “if the demised premises becomes vacant or deserted”— by serving a five-day notice to cure on the tenant “specifying the nature of said default.”  If the tenant fails to commence cure efforts within that period in good faith, “then Owner may serve a written three (3) days' notice of cancellation of th[e] lease upon Tenant,” terminating the lease, and the tenant “shall remain liable as hereinafter provided.”

The amended complaint specifically alleged that the tenant rendered the premises vacant while the lease remained in effect.  This triggered the tenant's right to notice under paragraph 17(1) before plaintiff's reentry and reletting of the premises following the tenant's purportedly ineffective surrender (see Holy Props. v. Cole Prods., 87 N.Y.2d 130, 133–134 [1995] ).

It does not avail plaintiff to argue that it was not intending to terminate the lease under this section but merely to collect unpaid rent owed for the balance of the lease term.  The allegations that the tenant returned the keys without objection, following which plaintiff executed a new lease with a new tenant, are at odds with the continuation of the landlord-tenant relationship (see e.g. Bay Plaza Estates v. New York Univ., 257 A.D.2d 472, 473 [1st Dept 1999] ).  In any event, both the lease and case law require notice to the tenant in advance of plaintiff's reentry and reletting of the premises (see Holy Props., 87 N.Y.2d at 133–134).

Plaintiff's claims for unpaid amounts due under paragraphs 17(2) of the lease and 66 of the rider are also unavailing, as both provisions apply only when the tenant remains in possession of the premises.  Paragraph 17(2) applies if “the notice provided for in [paragraph 17(1) ] shall have been given, and the term shall expire as aforesaid;  or if Tenant shall [be in] default in the payment of rent” or additional rent.  The use of “or” excludes paragraph 17(2)'s application to circumstances to which paragraph 17(1) would apply (see McKinney's Cons Laws of NY, Statutes § 235, Comment n 75).  Because the amended complaint alleges that the tenant rendered the premises vacant, paragraph 17(1) applies here rather than paragraph 17(2).

Paragraph 66 of the rider states, “Notwithstanding anything to the contrary in this lease it is agreed that any demand for rent may be made orally and no written notice of any kind shall be necessary as a condition precedent to commencement of a non-payment petition.”  This provision applies only where the tenant is in possession, as “a summary proceeding cannot be maintained against a tenant who is neither in possession nor claiming possession at the time of the commencement of the proceeding” (Merrbill Holdings, LLC v. Toscano, 59 Misc.3d 129[A], *1–2, 2018 N.Y. Slip Op 50410[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018] ).

Accordingly, the claims in the amended complaint relying on allegations that the tenant's early vacatur in these circumstances did not constitute an effective surrender were properly dismissed under paragraph 17(1), as plaintiff was required to give notice to the tenant of its intention to reenter and relet the premises, which it acknowledges did not occur.  Unlike in 622 Third Ave. Co. LLC v. Hyatt Leader Ltd. (226 AD3d 463 [1st Dept 2024] ), upon which plaintiff relies, the complaint contains no allegations that plaintiff responded to the tenant's notice of surrender of the premises by informing the tenant that the acceptance “was without prejudice to seeking damages for unpaid rent” (id. at 464).  Plaintiff acknowledges that there was no further communication between the parties after the tenant's counsel gave notice of its vacatur in August 2020 until plaintiff commenced this action in November 2024.

The court correctly dismissed the claims for breach of guaranty and for piercing the corporate veil against the tenant's principal.  As the court properly determined, plaintiff failed to sufficiently allege the existence of a written and executed guaranty or to provide documentary evidence of the guaranty (see General Obligations Law § 5–701[a][2] ).  Although the lease submitted with the amended complaint contains a standard form guaranty, the form is blank and unexecuted.  Plaintiff has not sufficiently alleged that a written and executed guaranty exists, nor has it asserted facts warranting leave to replead.

With respect to the claim seeking to pierce the corporate veil, as an initial matter, the doctrine does not support a separately pleaded claim;  “it is an assertion of facts and circumstances which will persuade the court to impose the corporate obligation on its owners” (Cortlandt St. Recovery Corp. v. Bonderman, 31 NY3d 30, 47 [2018] ).  To invoke the doctrine at the pleadings stage, plaintiff must allege that the tenant's principal “exercised complete domination and control over the corporation and abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice” (id. at 48 [internal quotation marks omitted] ).  The amended complaint asserts a bare allegation that the principal failed to maintain a separate bank account from the tenant in order to avoid damages.  This allegation does not support plaintiff's contention that the principal dominated and controlled the corporation to perpetrate a wrong resulting in plaintiff's injury.

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