2015 NY Slip Op 50089

Citation: 2015 NY Slip Op 50089
Jurisdiction: New York (state)
Source: Official source
Original Source: https://www.nycourts.gov/reporter/3dseries/2015/2015_50089.htm ↗

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or other similar character that is imposed upon or measured by the fixed rent, additional
charges and/or other sums payable hereunder".

As one can conclude from the history of commercial transactions with this property,
all of [*22]the commercial lease agreements were not
only recorded but also "run with the land". So the initial lease and option to purchase did
not contain the typical late fee provision as opposed to that of the disputed lease, but did
contain a penalty for nonpayment of "additional rent" as follows: "in default of the
payment of any taxes or other charges herein set forth, .after ten day notice to tenant, the
landlord may pay the same and the amount so paid with interest thereon at twelve (12)
percent may be added as additional rent to the next installment of rent becoming
due..".

In this disputed lease, the pivotal language of the late fee provision is that all late
payments of the fixed rent or other payments be "delinquent" for a period in excess of ten
(10) days, shall be "subject" to a late charge of "5% of the amount of the delinquent
payment". Webster defines delinquent, inter alia, as ignoring a duty, commitment
or responsibility, or as unpaid finance and overdue payment.

Under the particular facts in this case as established above, the Court does not find
that the Respondent corporation was delinquent' in the payment of the monthly rent. The
alleged breach of this rental agreement is more akin to a procedural' breach rather than a
substantive breach. Until May 23, 2013, the fixed rent, without any CPI increase as
prescribed in the lease, was tendered and accepted without reservation by the Petitioners.
As compelling, there was no evidence that late fees were ever billed to the Respondent