B.J.M. Realty Corporation v. Ruggieri

14 Citing cases

  1. In re Fosko Markets, Inc.

    74 B.R. 384 (Bankr. S.D.N.Y. 1987)   Cited 18 times
    Denying stay pending appeal because statute requires immediate surrender

    To determine whether or not there was a waiver we must focus on the landlord's intent as manifested by his acts. See B.J.M. Realty Corporation v. Ruggieri, 326 F.2d 281, 282-83 (2d Cir. 1964); Duplan, supra, 473 F. Supp. at 1091. We cannot say that this landlord has waived the deemed rejection.

  2. In re Fontainebleau Hotel Corporation

    515 F.2d 913 (5th Cir. 1975)   Cited 49 times
    Looking to state law to determine whether lease terminated before filing of bankruptcy petition

    E. g., Finn v. Meighan, supra, 325 U.S. at 301 [ 65 S.Ct. 1147, 89 L.Ed. 1624]; Model Dairy Co., Inc. v. Foltis-Fischer, Inc., 67 F.2d 704, 706 (2 Cir. 1933). Cf. B.J.M. Realty Corp. v. Ruggieri, 326 F.2d 281, 282 (2 Cir. 1963). In none of these cases would forfeiture have "seriously impaired", let alone totally frustrated, an arrangement by depriving the debtor of an asset absolutely necessary to its continued viability.

  3. Queens Boulevard Wine Liquor Corp. v. Blum

    503 F.2d 202 (2d Cir. 1974)   Cited 70 times   1 Legal Analyses
    In Queens Boulevard, supra, the majority, although recognizing that no public interest inhered in the operations of the debtor, a liquor store, nevertheless held that reorganization would be precluded if the debtor was deprived of its most valuable asset, its location.

    E. g., Finn v. Meighan, supra, 325 U.S. at 301; Model Dairy Co., Inc. v. Foltis-Fischer, Inc., 67 F.2d 704, 706 (2 Cir. 1933). Cf. B.J.M. Realty Corp. v. Ruggieri, 326 F.2d 281, 282 (2 Cir. 1963). In none of these cases would forfeiture have "seriously impaired", let alone totally frustrated, an arrangement by depriving the debtor of an asset absolutely necessary to its continued viability.

  4. Weaver v. Hutson

    459 F.2d 741 (4th Cir. 1972)   Cited 32 times

    Id. at 466, 98 S.E.2d at 877, quoting Winder v. Martin, 183 N.C. 410, 411, 111 S.E. 708, 709 (1922). This same principle bars forfeiture under a lease provision terminating the demise if the tenant procures the appointment of a trustee under the Bankruptcy Act. BJM Realty Corp. v. Ruggieri, 326 F.2d 281, 282-283 (2 Cir. 1964). Section 70(b) of the Bankruptcy Act, 11 U.S.C. § 110(b), provides that "an express covenant that an assignment by operation of law or the bankruptcy of a specified party thereto or of either party shall terminate the lease or give the other party an election to terminate the same shall be enforceable."

  5. Davidson v. Shivitz

    354 F.2d 946 (2d Cir. 1966)   Cited 7 times

    Termination clauses such as those here involved, although not looked upon kindly by the courts as a general rule, are valid and enforceable. B.J.M. Realty Corp. v. Ruggieri, 326 F.2d 281 (2 Cir. 1964). The right to terminate may, however, be waived or the landlord be estopped to assert the right.

  6. B.J.M. Realty Corporation v. Ruggieri

    338 F.2d 653 (2d Cir. 1964)   Cited 4 times

    However, upon petition for rehearing, this court modified its opinion to the extent of instructing the District Court to hold a full hearing on the petition. 326 F.2d 281. On the basis of additional evidence introduced by Dilbert, the District Court reaffirmed its original position in accordance, it believed, with the standards prescribed by this court. Since this matter was last before this court, the following new facts have been introduced into evidence:

  7. In re Duplan Corp.

    473 F. Supp. 1089 (S.D.N.Y. 1979)   Cited 9 times

    Accordingly, upon a breach courts will deem a forfeiture provision waived when by his conduct a landlord evinces "an intent to treat the lease as continuing rather than as terminated." BJM Realty Corp. v. Riggieri, 326 F.2d 281, 282 (2d Cir. 1964). This intent to waive the benefits of a forfeiture clause is most often inferred from the acceptance of rent which accrues after the lessees breach.

  8. In re D.H. Overmyer Co., Inc.

    383 F. Supp. 21 (S.D.N.Y. 1974)   Cited 9 times
    In Overmeyer the debtor's rent defaults were found to be "staggering"; there was little chance of the debtor's rehabilitation; the debtor had been consistently behind in its payments of rent, mortgage and tax payments.

    As the Court there stated: Cases upholding forfeiture pursuant to termination clauses include: Finn v. Meighan, 325 U.S. 300, 65 S.Ct. 1147, 89 L.Ed. 1624 (1945); Schokbeton Industries, Inc. v. Schokbeton Products Corp., 466 F.2d 171 (5th Cir. 1972); B.J.M. Realty Corp. v. Ruggieri, 326 F.2d 281 (2d Cir. 1963); Model Dairy Co. v. Foltis-Fischer, 67 F.2d 704 (2d Cir. 1933). Our decision does not deprive Section 70(b) of its statutory effect in those cases to which it is applicable.

  9. In re THW Enterprises, Inc.

    89 B.R. 351 (Bankr. S.D.N.Y. 1988)   Cited 24 times
    Defining a waiver as "an intentional relinquishment of a known right"

    In determining whether a lessor has waived a forfeiture provision in a lease, the court must ascertain whether there is by the landlord "conduct evidencing an intent to treat the lease as continuing rather than as terminated." BJM Realty Corp. v. Ruggieri, 326 F.2d 281, 282 (2d Cir. 1963), citing 650 Madison Avenue Corp. v. Wil-Low Cafeterias (In re Wil-Low Cafeterias), 95 F.2d 306 (2d Cir.), cert. denied 304 U.S. 567, 58 S.Ct. 950, 82 L.Ed 1533 (1938). This requires an analysis of the facts of each case. Fosko, 74 B.R. at 389; Lew Mark Cleaners Corporation, 86 B.R. at 334-35, 17 Bankr.Ct.Dec. at 873.

  10. In re Lew Mark Cleaners Corp.

    86 B.R. 331 (Bankr. E.D.N.Y. 1988)   Cited 17 times

    This test is the same analysis used in a lessor's alleged waiver of a forfeiture clause contained in a lease and in whether a lessor is estopped from asserting such a clause. Id.; see B.J.M. Realty Corp. v. Ruggieri, 326 F.2d 281, 282 (2d Cir. 1964); Realties 1430 v. Slaner (In re Duplan Corp.), 473 F. Supp. 1089, 1093 (S.D.N.Y. 1979); In re Fifth Avenue Originals, 32 B.R. 648, 656 (Bkrtcy.S.D.N.Y. 1983). The acts of the landlord in the present case do not evince an intent for the lease to continue.