& Federated Retail Holdings, Inc., et al., Plaintiffs–Respondents, v. LLC

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

& Federated Retail Holdings, Inc., et al., Plaintiffs–Respondents, v. Weatherley 39th Street, LLC, etc., Defendant–Appellant.

7636 M–1859

Decided: May 15, 2012

Mazzarelli, J.P., Catterson, Richter, Manzanet–Daniels, JJ. Wilk Auslander LLP, New York (M. William Scherer of counsel), for appellant. Loeb & Loeb LLP, New York (David M. Satnick of counsel), for respondents.

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Order, Supreme Court, New York County (Bernard J. Fried, J.), entered April 11, 2011, granting plaintiff tenant's motion and declaring it cured a lease default concerning the self-insured retention provisions of commercial insurance policies obtained for the benefit of defendant landlord and that landlord cannot terminate plaintiff's lease based upon that default, unanimously affirmed, with costs.

The primary issue on this appeal is whether tenant was able to cure a lease default caused by the presence of a self-insured retention in the excess/umbrella insurance policies obtained for the benefit of landlord.   Landlord makes vague, ultimately irrelevant, policy arguments and cites to an opinion of the New York State Insurance Department which is not binding on any court (see Go11 v. N.Y. State Bar Assn., 193 A.D.2d 126, 128 [1993] ).   Landlord cites no case law, regulation or other rule of law standing for the proposition that a self-insured retention may not be eliminated through the use of an endorsement to the original occurrence based policy, which covers the same policy period.   Accordingly, the motion court properly granted the motion and correctly declared that the lease default has been cured and the lease cannot be terminated based upon that default.

We have considered landlord's remaining arguments and find them unavailing.

M–1859 – Federated Retail Holdings, Inc., et al., v Weatherley 39th Street, LLC, etc.

Motion for an order modifying a Yellowstone injunction denied.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK