Opinion
2021-03417 Index 161815/15
06-01-2021
Penny Port, LLC, Plaintiff-Appellant, v. Metropolitan Transportation Authority et al., Defendants-Respondents. Appeal No. 13977-13977A Nos. 2020-02548, 2020-04482
Davidoff Hutcher & Citron LLP, New York (David H. Wander of counsel), for appellant. Hoguet Newman Regal & Kenney, LLP, New York (Ira J. Lipton of counsel), for respondents.
Davidoff Hutcher & Citron LLP, New York (David H. Wander of counsel), for appellant.
Hoguet Newman Regal & Kenney, LLP, New York (Ira J. Lipton of counsel), for respondents.
Before: Kern, J.P., Moulton, González, Scarpulla, JJ.
Order, Supreme Court, New York County (Joel M. Cohen, J.), entered March 18, 2020, which granted defendants' motion for summary judgment dismissing the complaint, and order, same court and Justice, entered October 16, 2020, which denied plaintiff's motion to renew, unanimously affirmed, without costs.
Plaintiff, the owner of Michael Jordan Steakhouse previously located in Grand Central Terminal, seeks to recover damages caused to its business as a result of defendants' years-long leak remediation project, which involved placing barricades on Vanderbilt Avenue. The lease between plaintiff and defendants MTA and Metro North contained a provision related to construction work undertaken by MTA. Section 15.3 provided that MTA might renovate portions of Grand Central Terminal and, at times, would perform construction work in and about the building which could result in noise and disruption to plaintiff's business. In pertinent part, section 15.3 provided, "Tenant agrees that Landlord shall not be liable for, and Tenant expressly waives and releases Landlord... from, any liability and any and all claims Tenant may have against [it] for any loss, injury, or other damage... including without limitation, lost profits... arising or alleged to be arising as a result of any such construction or other work activity."
That provision explicitly and unambiguously bars claims for lost profits due to the type of construction work at issue here (see Wilson Trading Corp. v David Ferguson, Ltd., 23 N.Y.2d 398, 403 [1968]). Liability limiting clauses such as this are enforceable unless unconscionable (see ZMoore, Ltd. v Kingman Mgt. LLC, 154 A.D.3d 603 [1st Dept 2017], lv denied 30 N.Y.3d 913 [2018]; Board of Mgrs. of the Saratoga Condominium v Shuminer, 148 A.D.3d 609, 610 [1st Dept 2017]).
Section 2.3.4 of the lease, which required MTA to use reasonable efforts to perform certain work so that it did not unreasonably interfere with the reasonable operation of plaintiff's business, is inapplicable to modify the unequivocal waiver of plaintiff's right to claim lost profits. That section of the lease pertains to delineated types of work that would impact the restaurant directly, and included a provision for rent abatement under specified circumstances, which was carved out of the general waiver of recovery for plaintiff's loss (see generally Nomura Home Equity Loan, Inc., Series 2006-FM2 v Nomura Credit & Capital, Inc., 30 N.Y.3d 572, 581 [2017]).
We have considered plaintiff's remaining arguments and find them unavailing.