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Victory Against National Retailer on Breach of Ground Lease

Rosenberg Fortuna & Laitman, LLP, successfully represented at trial the ground lessor of a ten (10) acre parcel of commercial property located in Suffolk County, New York in a dispute with the ground lessee, a major national retailer which was to construct a "big box" retail store.

The zoning and approval process continued for several years and a building permit was finally obtained by the retailer. However, at the time the building permit was obtained, the national economy was in a tailspin and, unbeknownst to the ground lessor, the retailer internally decided to cancel twenty-three (23) projects throughout the country. The retailer purported to terminate the ground lease on the grounds that a permit, which the retailer itself had deferred obtaining, had not yet been obtained. On behalf of its client, the firm commenced an action to declare the retailer in default of the ground lease seeking damages for the difference in the rental value between the agreed-upon rate in the lease and the then depressed market value over the twenty (20) year term of the lease. In addition, the ground lessor is seeking the depreciated value of the building it would have received at the end of the lease. After a trial in Supreme Court, Suffolk County, Commercial Division, a written decision was rendered which declared the retailer to be in default of the ground lease with damages to be determined in a subsequent proceeding. Partner David I. Rosenberg, Esq. and associate, Anthony R. Filosa, Esq., represented the ground lessor on behalf of Rosenberg Fortuna & Laitman, LLP.