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1
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OPINION
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EXTRACTED KEY WORDS
PLAINTIFF LETTER AGREEMENT SUBSTANTIAL PERFORMANCE PARTIES WRITTEN CONSENT SUBLEASE DEADLINE CONDITION PRECEDENT CONTRACT TENANT WORK DOCTRINE YORK FORFEITURE COURT PARAGRAPH OPPENHEIMER FORMATION ORAL NOTICE LANGUAGE CONDITION SET ATTORNEY CONSTRUCTIVE CONDITIONS RESTATEMENT RESPONDENT APPELLANT CIPARICK LETTER AGREEMENT SETTING EXISTENCE SHIPMENT |
OPPENHEIMER & CO., INC., RESPONDENT, v. OPPENHEIM, APPEL, DIXON & CO.,
APPELLANT.
86 N.Y.2d 685, 660 N.E.2d 415, 636 N.Y.S.2d 734
November 30, 1995
1 No. 274 (1995 NY Int. 258)
Decided November 30, 1995
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Darrell K. Fennell, for Appellant.
Gregory N. Wallance, for Respondent.
CIPARICK, J.:
The parties entered into a Letter Agreement setting forth certain
conditions precedent to the formation and existence of a sublease
between them. The agreement provided that there would be no sublease
between the parties "unless and until" plaintiff delivered to
defendant the prime landlord's written consent to certain "tenant
work" on or before a specified deadline. If this condition did not
occur, the sublease was to be deemed "null and void." Plaintiff
provided only oral notice on the specified date. The issue presented
is whether the doctrine of substantial performance applies to the
facts of this case. We conclude it does not for the reasons that
follow.
I.
In 1986, plaintiff Oppenheimer & Co. moved to the World Financial
Center in Manhattan, a building constructed by Olympia & York Company
(O & Y). At the time of its move, plaintiff had three years remaining
on its existing lease for the 33rd floor of the building known as One
New York Plaza. As an incentive to induce plaintiff's move, O & Y
agreed to make the rental payments due under plaintiff's rental
agreement in the event plaintiff was unable to sublease its prior
space in One New York Plaza.
In December 1986, the parties to this action entered into a
conditional Letter Agreement to sublease the 33rd floor. Defendant
already leased space on the 29th floor of One New York Plaza and was
seeking to expand its operations. The proposed sublease between the
parties was attached to the Letter Agreement. The Letter Agreement
provided that the proposed sublease would be executed only upon the
satisfaction of certain conditions. Pursuant to paragraph 1(a) of the
SNIPPETS:
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