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Contractor’s performance not excused

Contractor’s performance not excused

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City of Troy, N.Y. v 1776 Sixth Ave., Troy, LLC

Decided November 12, 2015 at App. Div. 3rd Dep’t.

The issue here was whether the language of the contract excused Defendant’s performance by the requisite deadline.  The parties entered into a lease wherein the Defendant was to install an elevator within the premises by March 1, 2009.  Pursuant to the letter of intent entered into by the Plaintiff and Defendant, the parties were to work together to identify a suitable location for the elevator. In addition to the letter, an addendum was also subsequently added to the original contract, requiring Plaintiff to provide Defendant with proposed layout plans from Plaintiff’s engineering department and a proposed location for the elevator. Defendant failed to meet the elevator installation deadline.

Plaintiff brought suit to recover¸ inter alia, its monthly rental payments.  Defendant argued that its obligation to perform prior to the installation deadline was excused as, pursuant to the letter of intent and the subsequent amendment, Plaintiff delayed in submitting the location proposals.

The court found that, contrary to Defendant’s argument, neither the letter of intent nor the subsequent amendment excused its performance of installing the elevator prior to the deadline.  The deadline was an unequivocal term listed in the original contract, not conditioned upon Plaintiff’s approval of the elevator’s location nor upon the submission of the proposed layout plans.

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