Key Points

  • The First Department unanimously affirmed dismissal of a landlord's suit seeking rent for the balance of a lease term from a tenant whose counsel gave notice of its vacatur in August 2020.
  • Because the complaint alleged the tenant left the premises vacant while the lease was in effect, paragraph 17(1) of the lease required notice to the tenant before the landlord reentered and relet the space, and no notice was given.
  • Lease paragraph 17(2) and rider paragraph 66, which dispenses with written rent demands before a nonpayment petition, apply only when the tenant remains in possession.
  • The court distinguished 622 Third Ave. Co. LLC v Hyatt Leader Ltd. because this landlord never told the tenant its acceptance of the surrender was without prejudice to seeking unpaid rent.
  • The guaranty claim failed because the only guaranty form was blank and unexecuted, and veil piercing is not a standalone claim and was supported only by a bare allegation about a shared bank account.

A New York appeals court on Tuesday refused to revive a landlord's lawsuit seeking rent for the remainder of a lease term from a tenant that vacated early, holding that the landlord had to notify the tenant before it took back the space and leased it to someone else.

The Appellate Division, First Department, unanimously affirmed a July 2025 order by Justice Lyle E. Frank of State Supreme Court in New York County that dismissed the amended complaint of Renaissance Midtown West LLC against its former tenant, Lividini & Company, LLC, and the tenant's principal. The decision was unsigned. The panel consisted of Justice Webber, presiding, and Justices Kapnick, Shulman, Pitt-Burke and Hagler.

The ruling holds that a lease's notice requirement for vacated premises applies even when the landlord says it is not trying to end the lease but only to collect the rent. Because the landlord took back the space and signed a new tenant without first giving that notice, the court held, its claims against the departed tenant failed. Claims against the tenant's principal on a guaranty and a veil-piercing theory failed as well.

The dispute turned on paragraph 17(1) of the lease, which the court said contains a conditional limitation permitting the landlord to terminate the lease for defaults other than nonpayment of rent. One listed default applies "if the demised premises becomes vacant or deserted." The landlord must first serve a five-day notice to cure "specifying the nature of said default." If the tenant does not begin to cure in good faith, the landlord may then serve "a written three (3) days' notice of cancellation," after which the tenant "shall remain liable as hereinafter provided."

According to the amended complaint as the court described it, the tenant's counsel gave notice in August 2020 that the tenant was vacating, the tenant returned the keys without objection, and the landlord then signed a lease with a new tenant. The landlord acknowledged that the parties did not communicate again until it sued in November 2024. It also acknowledged that it never gave the tenant notice of its intention to reenter and relet the premises.

Renaissance argued that the tenant's early departure was not an effective surrender. It contended that it was not seeking to terminate the lease under paragraph 17(1) but "merely to collect unpaid rent owed for the balance of the lease term."

The panel rejected that position. The complaint itself "specifically alleged that the tenant rendered the premises vacant while the lease remained in effect," the court wrote, and that allegation triggered the tenant's right to notice under paragraph 17(1). The returned keys and the new lease, the court added, "are at odds with the continuation of the landlord-tenant relationship."

"In any event, both the lease and case law require notice to the tenant in advance of plaintiff's reentry and reletting of the premises," the court wrote, citing the Court of Appeals' 1995 decision in Holy Props. v. Cole Prods.

The court also rejected the landlord's reliance on two other lease provisions, paragraph 17(2) and paragraph 66 of the lease rider, holding that "both provisions apply only when the tenant remains in possession of the premises." Paragraph 17(2) applies where the 17(1) notice has been given and the term has expired, "or if Tenant shall [be in] default in the payment of rent." The panel reasoned that the word "or" keeps paragraph 17(2) from reaching situations covered by paragraph 17(1), and a vacated premises falls under 17(1).

Rider paragraph 66 allows rent demands to be made orally and says no written notice is needed before "commencement of a non-payment petition." The court held that the clause covers only tenants in possession. It quoted a 2018 Appellate Term decision holding that "a summary proceeding cannot be maintained against a tenant who is neither in possession nor claiming possession at the time of the commencement of the proceeding."

The panel distinguished its own 2024 decision in 622 Third Ave. Co. LLC v. Hyatt Leader Ltd., on which the landlord relied. In that case, the court noted, the landlord had answered the tenant's notice of surrender by saying that its acceptance "was without prejudice to seeking damages for unpaid rent." Renaissance's complaint contained no such allegation, the court wrote.

On the claims against the tenant's principal, whom the decision does not name, the panel agreed with Justice Frank that the landlord had not sufficiently alleged a written and executed guaranty. The court cited General Obligations Law ยง 5-701(a)(2). The lease attached to the amended complaint included a standard form guaranty, but "the form is blank and unexecuted," the court wrote. It added that the landlord had not asserted facts warranting leave to replead.

Piercing the corporate veil, the court said, is not a separately pleaded claim but "an assertion of facts and circumstances which will persuade the court to impose the corporate obligation on its owners," quoting the Court of Appeals' 2018 decision in Cortlandt St. Recovery Corp. v. Bonderman. A plaintiff must allege that the owner "exercised complete domination and control over the corporation and abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice." The complaint's "bare allegation" that the principal did not keep a bank account separate from the tenant's did not meet that standard, the panel held.

Renaissance was represented by Richard J. Pilson of Berliner & Pilson. David H. Wander of Tarter Krinsky & Drogin LLP represented Lividini and the other defendants.

The First Department affirmed without costs and said it had considered the landlord's remaining contentions and found them unavailing. The ruling leaves Justice Frank's dismissal of the amended complaint in place. The decision, 2026 NY Slip Op 06265, is uncorrected and subject to revision before publication in the Official Reports.