AD 1619 LLC v. COLONY RECORDS AND RADIO CENTER INC

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Supreme Court, Appellate Division, First Department, New York.

AD 1619 LLC, Plaintiff-Appellant, v. COLONY RECORDS AND RADIO CENTER, INC., Defendant-Respondent.

Decided: May 13, 2003

BUCKLEY, P.J., ANDRIAS, SAXE, LERNER and MARLOW, JJ. Mark E. Klein, for Plaintiff-Appellant. William R. Fried, Robert J. Patchen, for Defendant-Respondent.

Order and judgment (one paper), Supreme Court, New York County (Karla Moskowitz, J.), entered October 18, 2002, which, after a nonjury trial, inter alia, denied plaintiff's request for a declaration that the parties' Lease Extension Agreement was canceled and of no force or effect and declared in defendant's favor that the agreement was in full force and effect, unanimously affirmed, with costs.

The evidence fairly interpreted supports the trial court's finding that the period allotted defendant, a storefront retail tenant since 1979, to construct a new storefront under the parties' Lease Extension Agreement would have been sufficient but for the time lost because of plaintiff landlord's unreasonable demands.   Those demands first raised six months after the agreement was entered into, that the storefront design reflect the history and the “rhythm” of plaintiff's building.   Such conduct by plaintiff excused defendant's nonperformance of its obligation to complete installation of the new storefront within the time frame established in the agreement and thus bars plaintiff's claim that the agreement has been nullified for failure of a condition precedent (see Solow Bldg. Co. v. Morgan Guar. Trust Co., 301 A.D.2d 440, 754 N.Y.S.2d 8;  Chemical Bank v. Stahl, 272 A.D.2d 1, 14, 712 N.Y.S.2d 452).

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