Commercial Division Blog

Posted: April 26, 2019 / Categories Commercial, Real Property

Questions of Fact Preclude Decision on Whether Tenant Held-Over By Leaving Office Furniture and Equipment in Premisis

On April 2, 2019, Justice Masley of the New York County Commercial Division issued a decision in Roza 14W LLC v. Fordham Fin. Mgt., Inc., 2019 NY Slip Op. 30950(U), holding that questions of fact precluded a decision on whether a tenant leaving office furniture and equipment in a premises constituted a hold-over tenancy, explaining:

Fordham concedes that it did not vacate the premises on March 31, 2012, but asserts that it surrendered and vacated the premises on May 16, 2012. Although there is no dispute that Fordham violated the holdover provision of the Lease and Amendment, there is an issue of fact as to whether Fordham surrendered and vacated the premises in May or July of 2012. This issue of fact stems from the deposition testimony provided by Fordham's Chief Financial Officer, Richard Adams, who testified that upon vacating the premises, Fordham left behind desks and computers. Adams further stated, "They had a value to me, yeah." Adams also noted that the portion of the premises that Fordham leased was essentially office space. On matters such as these, the First Department has plainly stated that the question of whether the leaving by the tenant of property on the leased premises after expiration of the lease constitutes a holding over is usually a question of fact to be determined by taking into consideration the nature of the property leased, the amount paid as rent, the value of the real property, the value of the personal property left on the leased premises, the intent with which it was left, and all the other facts and circumstances surrounding the transaction. Because evidence in the record indicates that (1) the nature of the leased premises was office space, (2) there was value to the desks and computers left at the premises, the exact amount of which is unclear, and the (3) intent with which it was left behind is unclear , there is a genuine issue of material fact. Fordham's reliance on ONX-1, LLC v New Process Gear, Inc. is unavailing because that action concerned a tenant who allegedly left behind petroleum waste on the walls, floors, ceilings, and pipes among other areas. Although the court noted that leaving behind excessive filth, structural alterations, and major installations does not constitute a constructive holdover, none of those categories are applicable to the desks and computers left here in the leased office space.

(Internal quotations and citations omitted).

We frequently litigate disputes over the sale or leasing of commercial property. Contact Schlam Stone & Dolan partner John Lundin at if you are involved in a dispute regarding a commercial real estate transaction.