1183 Broadway LLC v 7Alwaysandforever6 LLC

Civil Court of the City of New York, Kings County

Decided on July 16, 2026

Index No. LT-303885-26/KI

Tehilah H. Berman, J.

This commercial holdover proceeding raises the following issue: whether a tenant's procurement of the contractually required commercial liability insurance one day after the expiration of a lease's cure period nevertheless constituted a timely cure under the lease's conditional limitation provision. The lease expressly extended the cure period for defaults that could not reasonably be cured within the initial fifteen days provided the tenant proceeded with reasonable diligence and in good faith to cure the default. The court holds that respondent satisfied the cure provision by diligently commencing efforts to obtain the required insurance during the cure period and completing the procurement one day past the cure period, but within the lease's contractual extension for defaults incapable of being cured within the initial fifteen-day period. Since respondent cured the default in accordance with Paragraph 17(1) of the lease, the conditional limitation was never triggered, the lease was not validly terminated, and petitioner cannot maintain this holdover proceeding.

On July 3, 2024, 1183 Broadway LLC ("petitioner" or "owner") and 7ALWAYSANDFOREVER6 LLC ("respondent" or "tenant") entered into a commercial lease agreement for the premises located at 1183 Broadway in Brooklyn, to be used as a restaurant and bar. Petitioner claims that the lease terminated because respondent breached the lease by not maintaining liability insurance. Respondent a served a 15 day notice to cure the lease default, [*2]dated December 19, 2025 ("Cure Notice"), which directed respondent to cure the default; i.e., obtain and disclose their insurance by January 14, 2026. During the cure period, respondent made an effort to comply with the notice to cure by obtaining an insurance policy quote proposal from Coterie on December 31, 2025. On January 15, 2026, respondent secured a business owners policy with Spinnaker Insurance Company for the period beginning on January 15, 2026 and ending on January 15, 2027.

On January 20, 2026, petitioner served a notice of termination and commenced this holdover proceeding, demanding that respondent vacate the premises by February 5, 2026. On February 6, 2026, petitioner filed a verified petition with this court seeking a judgment of possession of the premises and a money judgment for both the costs of this proceeding and the use and occupancy of the premises since the expiration of the lease term. On March 6, 2026, respondent filed an answer asserting affirmative defenses, including lack of personal jurisdiction due to improper service of the notice of petition and petition, and counterclaims for a court order directing specific performance of petitioner's obligations under the lease, including delivering the premises with all plumbing, gas and electrical systems in good working order; fixing the leaks; and making structural repairs. Petitioner moved for summary judgment of possession and to strike respondent's affirmative defenses and counterclaims.

Petitioner claims that the lease terminated because respondent breach sections 8 and 46 of the lease. Sections 8 and 46 require respondent to maintain liability insurance but do not themselves provide that a failure to do so terminates the lease. Rather, termination is governed exclusively by Paragraph 17. Section 17(1) provides that if the tenant defaults in fulfilling any of the covenants of the Lease other than the covenants for the payment of rent or additional rent, the owner must first give the tenant 15 days' written notice to cure the problem. If the tenant does not cure the default within that time or "if the said default or omission complained of shall be of a nature that the same cannot be completely cured or remedied within said fifteen (15) day period, and if Tenant shall not have diligently commenced curing such default within such fifteen (15) day period, and shall not thereafter with reasonable diligence and in good faith proceed to remedy or cure such default within 30 days in the aggregate, diligently begin curing a default that cannot reasonably be completed within 15 days," the landlord may give a 5-day notice of cancellation. When the 5-day period expires, the "lease and the term thereunder shall end and expire as fully and completely as if the expiration of such five (5) day period were the day herein definitely fixed for the end and expiration of this lease." Paragraph 17(2) gives the owner the right, after the lease expired under paragraph 17(1) to re-enter the premises, commence summary proceedings, and remove the tenant's property.

"A holdover proceeding based upon a landlord's termination of a lease may only be maintained where there is a conditional limitation in the lease providing for its early termination." Fourth Hous. Co., Inc. v Bowers, 53 Misc 3d 43, 44 (App. Term 2d Dept. 2016). See also, 72-15 Realty Co. LLC v Marmol, 70 Misc 3d 199, 202 (Civ. Ct. Queens County 2020) ("Put simply, a conditional limitation contains both the basis and the means by which a lease may be terminated prior to its natural expiration."). If a clause in a lease provides that the lease cannot endure beyond the time when a contingency happens, it creates a conditional limitation upon the occurrence of which the lease automatically expires; a summary proceeding will lie to evict a tenant who remains thereafter." Perrotta v. Western Regional Off-Track Betting Corp., [*3]98 AD2d 1, 2 (4th Dept. 1983). See also, TSS-Seedman's, Inc. v. Elota Realty Co., 72 NY2d 1024, 1026 (1988). To be deemed a conditional limitation, the lease must "state clearly that it will expire upon the happening of some objective event." 71st St.-Lexington Corp. v. Frankel, 2025 NY Slip Op 50425(U), 2025 NY Misc. LEXIS 1909,*5-6 (Sup. Ct. NY Co. 2025). Once the contingency occurs, the lease "automatically expires, and no other act is necessary to end it." Id. This court finds that Paragraph 17(1) constitutes a "conditional limitation." It requires a 15 day notice to cure; if the default is not cured, it authorizes a five-day notice of cancellation; and it expressly provides that upon expiration of the cancellation notice, "this lease and the term thereunder shall end and expire as fully and completely as if" that date were the lease's stated expiration date.

The lease expressly recognizes that some defaults cannot reasonably be cured within the initial fifteen-day period. Paragraph 17(1) protects a tenant who, during the 15-day cure period, makes efforts to cure a default that cannot reasonably be completed within 15 days so long as the tenant continues to work diligently and in good faith to complete the cure within a total of 30 days. The owner may only serve the 5-day notice of cancellation if the tenant fails to take proper action. This court takes judicial notice as a matter of common knowledge that obtaining commercial liability coverage frequently requires contacting brokers, submitting underwriting information, and obtaining quotes, and that commercial policies are not issued instantaneously. See, Ptasznik v. Schultz, 247 AD2d 197, 198 (2d Dept. 1998) ("The test [for judicial notice] is whether the fact rests upon knowledge or sources so widely accepted and unimpeachable that it need not be evidentiarily proven"). This court finds that obtaining commercial liability insurance required steps that could not reasonably be completed within the cure period, and that respondent demonstrated precisely the diligence and good faith contemplated by Paragraph 17(1) by obtaining a quotation during the cure period. See, Elite Wine & Spirit LLC v Michelangelo Preserv. LLC, 213 AD3d 143, 148-149 [1st Dept. 2023] ["The lease provides an indefinite cure period where the alleged default cannot reasonably be remedied within the base 20-day cure period and tenant has demonstrated a good faith effort to remedy the default"].

This court further concludes that respondent's January 15 procurement—just one day after the cure deadline and well within the 30-day aggregate limit - satisfied the "reasonable diligence and in good faith" standard set forth in the cure provision of the conditional limitation clause. Therefore, the conditional limitation clause did not authorize early termination of the lease, and there is no basis for treating respondent as holding over past the termination of the lease. See, Rochdale Vil., Inc. v. Hallerdin-Grant, 84 Misc 3d 283, 289 (Civ. Court Queens Co. 2024) ("where the conditional limitation clause in the parties' occupancy agreement does not authorize early termination of the lease based on the failure to pay rent, no cause of action lies in a holdover for a default in payment of maintenance or surcharges, and the branch of the petition on this basis must be dismissed").

CPLR 3212(b) provides that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." The movant "must make a prima facie showing of entitlement to judgment as a matter of law" by "tendering sufficient evidence to demonstrate the absence of any material issues of fact." Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). Petitioner failed to make this showing and its motion [*4]for summary judgment is therefore denied.

Although respondent did not cross-move for summary judgment, CPLR 3212(b) authorizes this court to "search the record" and grant summary judgment to a nonmoving party where warranted. Backer v. Bouza Falco Co., 28 AD3d 503, 504 (2d Dept. 2006). It provides: "If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion." CPLR 3212(b). The material facts are undisputed. Respondent satisfied the cure provision contained in Paragraph 17 of the lease, the conditional limitation was never triggered, and petitioner therefore had no contractual basis to terminate the lease. Upon searching the record, the court awards summary judgment to respondent dismissing the petition. Petitioner's motion to strike respondent's affirmative defenses is denied as academic. However, all of respondent's counterclaims are dismissed as the Civil Court lacks subject matter jurisdiction to grant the equitable relief requested. Barkagan v S&L Star Realty, LLC, 185 AD3d 643, 644 (2d Dept. 2020); 728 Fulton St. LLC v Perch, 63 Misc 3d 602, 606 (Civ. Ct. Kings Co. 2019). This constitutes the decision and order of the court.

Dated: July 16, 2026

Hon. Tehilah H. Berman

Judge of the Civil Court, Kings County