Not Carrying Required Insurance Is Uncurable Violation

What Happened: A landlord sued to evict a spa tenant for violating its lease obligation to maintain a general liability insurance policy. The spa acknowledged the violation but asked the court to toss the lawsuit because the landlord never gave it the formal notice and opportunity to cure required to evict under the lease. The landlord claimed that it didn’t provide the notice because the default was uncurable.

Decision: The New York court agreed with the landlord and denied the tenant’s motion to dismiss.

Reasoning: Generally, a landlord can’t evict a tenant unless it serves the required notice to cure. But, the court continued, the fact that the lease (or a statute) gives a tenant time to cure doesn’t mean the landlord must provide the notice when there’s no possibility of a cure. To insist that landlords go through the motion of serving formal notice to cure defaults that can’t be cured would be “to compel the performance of a useless and futile act.” The court concluded that in this case the tenant’s failure to maintain the required insurance was incurable.  

• 159 W. 23^rd Llc v. Spa Ciel De Ny Corp.: 2019 NYLJ LEXIS 1430 (April 2019)