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Adam Leitman Bailey, P.C. Defeats a Tenant’s Order to Show Cause Seeking a Preliminary Injunction and Upholds a Commercial Landlord’s Rights to Self Help

It is a longstanding and well-settled principle of law in New York that, when the right to re-enter is expressly reserved in a commercial lease, the landlord may re-enter the leased premises upon a tenant’s default in the payment of rent, a breach of other lease terms, or upon the termination of the lease.

This principle was recently tested in a Nassau County Supreme Court action preliminary injunction application, where a commercial tenant (in severe breach of multiple covenants of its lease) sought to enjoin the owner from interfering with the tenant’s continued use and occupancy of the subject premises.

When the owner duly exercised its rights, the tenant trespassed into the subject premises, then commenced a Supreme Court action for wrongful eviction, breach of contract, and conversion. The tenant moved, by order to show cause, for a preliminary injunction seeking to enjoin the owner from interfering with the tenant’s business operations and use and occupancy of the premises.

Representing the commercial landlord, Adam Leitman Bailey, P.C., opposed the motion. We argued that the lease expressly allows self help, that, as a result, the tenant failed to demonstrate a likelihood of success on the merits, that the tenant failed to demonstrate irreparable injury because the tenant sued for money damages, and, that the equities do not balance in the tenant’s favor because the tenant was in significant default of the lease.

The court agreed. In an order denying the tenant’s motion in its entirety, the court wrote:

Here, paragraph 17 the parties’ lease expressly grants the landlord the right to reenter upon a plaintiffs’ breach of substantial obligations of tenancy or nonpayment of rent. It is well settled even were a Court to determines self-help was not peaceable, a tenant is relegated only to a suit for damages, but not restoration of the subject premises where restoration would be futile because the landlord is entitled to seek judgment evicting the plaintiffs.

. . . .

The plaintiffs failed to clearly show the equities balance in plaintiffs’ favor. It appears the plaintiffs may not have a reasonable expectation of being able to continue to occupy and operate the space without the payment of rent and in violation of the lease and law.

Jeffrey R. Metz and Vladimir Mironenko of Adam Leitman Bailey, P.C. represented the commercial landlord in opposition to the order to show cause.


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