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The Leasing Hotline
RECAPTURE CLAUSE
A landlord may not rely upon a recapture clause in a lease where the tenant never commenced occupation of the premises. Blinds To Go., Inc. v. Times Plaza Development, L.P., Index No. 1932/03, 2004-04427, Supreme Court of New York, Appellate Division, Second Department, June 20, 2005.
The landlord and tenant entered into a lease for commercial space. The tenant never occupied the space, and the landlord relet the premises to another commercial tenant. The tenant then commenced an action against the landlord; the landlord made a pre-answer motion to dismiss the complaint based upon the recapture clause in the parties' lease. The trial court granted the landlord's pre-answer motion. The tenant appealed, and the appellate court reversed. The appellate court held that the landlord incorrectly relied upon the recapture clause because the tenant had never occupied the premises. The appellate court reinstated the complaint.
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