of life; (2) a contract for the excessive benefit of the offeror; (3) an economic or other
advantage of the offeror; and (4) the offer of a proposed contract on a take it or leave it
basis. Spring Valley Garden Associates v. Earle, 112 Misc 2d 786 (Special Term
Rockland County, 1982).
"In this case, the contract was drafted by VP Village Park Apartments, LLC
consisting of 19 pages and providing for late fees in the event of a holdover. Although
the late fee was not calculated by Petitioner as set forth in the lease, the late charge
provision is excessive and grossly disproportionate to any amount of damages that could
be sustained by the failure to pay rent in a timely fashion. The clause, if applied as
written, could virtually spiral to the point that outstanding late charges would far and
away exceed the monthly rent in little more than two months. In this Court's view, the
late charge provision of this lease is a penalty. Accordingly, the late charge provision as
drafted in the Petitioner's lease is deemed unconscionable and void".
In Grand Baldwin Assos. v. Birnak, ABC Corp., 21 Misc 3d 1129 (A), 2008 WL
4891113 (NY Dist. Ct) Justice Fairgreive, similarly, after a detailed analysis supported by
well settled landlord and tenant rules of law and reliance on many of the above cases
including but not limited to Truck Rent-A-Center, Inc. v. Purtan Farmres 2nd Inc.,
supra; Wirth & Hamid Fair Booking v. Wirth, supra; and Equitable
Lbr. Co. v. IPA Land Dev. Corp., supra, found the liquidated damages provision
a penalty and not enforceable by law. His analysis involved a comparison of the recent
case of Thirty-Third Equities Company LLC v. Americo Group, Inc. (294 AD2d 222,
743 N.Y.S.2d 10 [1st Dept., 2002]), where the Court held that a liquidated damages