Opinion
7742 Index 655204/16
11-29-2018
ERMENEGILDO ZEGNA CORPORATION, Plaintiff-Respondent, v. L & M 825 LLC, Defendant-Appellant.
Herrick, Feinstein LLP, New York (Scott E. Mollen of counsel), for appellant. Loeb & Loeb LLP, New York (Gil Feder of counsel), for respondent.
Herrick, Feinstein LLP, New York (Scott E. Mollen of counsel), for appellant.
Loeb & Loeb LLP, New York (Gil Feder of counsel), for respondent.
Richter, J.P., Manzanet–Daniels, Gische, Kapnick, Gesmer, JJ.
The parties entered into a commercial real estate contract for plaintiff to use three floors of defendant's building as retail space. Prior to the lease, the premises and an adjacent property were a single combined space, occupied by one retail store. The parties agreed that the defendant would divide the space into two retail stores. After the dividing wall was erected, the parties discovered that it eliminated one of the required exits for the upper two floors of plaintiff's store, invalidating the Certificate of Occupancy.
Plaintiff seeks, among other things, rescission of the lease based on mutual mistake ( Eisenberg v. Hall, 147 A.D.3d 602, 604, 48 N.Y.S.3d 71 [1st Dept. 2017] ). Defendant counters that plaintiff is precluded from invoking mutual mistake because of its conscious ignorance of the potential adverse impact that the construction of the wall would have on its anticipated use of the space ( P.K. Dev. v. Elvem Dev. Corp., 226 A.D.2d 200, 201–202, 640 N.Y.S.2d 558 [1st Dept. 1996] ). This record does not permit resolution of these issues as a matter of law.
We have considered defendants' remaining arguments and find them unavailing.