As discussed above, the Corporation undertook efforts to comply with its own
obligations under the Lease and Amended Lease. There is no dispute that, with the
exception of a few months, Plaintiff has not made any payments to the Corporation since
2007. The Corporation, through Plaintiff's non-payment, sustained a budgetary shortfall.
Accordingly, the Corporation has demonstrated entitlement to maintenance and utilities,
subject to payments already made by Plaintiff and the abatement discussed above.
Accordingly, the only issue is the measure of damages.
As discussed above, this Court finds the Amended Lease effective as of May 2010
(supra at fn 5). However, even if this Court had held otherwise, there would be
no material difference in the calculation of damages. That is, with respect to nonpayment,
paragraph 12 of the Lease provided that
The Lessee will pay the rent to the Lessor upon the terms and at the times
herein provided, without any deduction on account of any set-off or claim which the
Lessee may have against the Lessor, and if the Lessee shall fail to pay any installment of
rent promptly, the Lessee shall pay interest thereon at the maximum legal rate
from the date when such installment shall have become due to the date of the payment
thereof, and such interest shall be deemed additional rent hereunder (emphasis
added).
Paragraph 12 of the Amended Lease provides that
The Lessee will pay the rent to the Lessor without any deduction on
account of any set-off or claim which the Lessee may have against the Lessor, within the
time specified by Lessor's Board of Directors. If Lessee shall fail to pay the rent when
due, Lessee shall pay a late charge determined by the Board of Directors of Lessor. If