Ermenegildo Zegna Corp. v. L&M 825 LLC

Ermenegildo Zegna Corp. v L&M 825 LLC (2018 NY Slip Op 08181) Ermenegildo Zegna Corp. v L&M 825 LLC 2018 NY Slip Op 08181 Decided on November 29, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on November 29, 2018 Richter, J.P., Manzanet-Daniels, Gische, Kapnick, Gesmer, JJ. 7742 655204/16 [*1]Ermenegildo Zegna Corporation, Plaintiff-Respondent, v L & M 825 LLC, Defendant-Appellant. Herrick, Feinstein LLP, New York (Scott E. Mollen of counsel), for appellant. Loeb & Loeb LLP, New York (Gil Feder of counsel), for respondent. Order, Supreme Court, New York County, (Barbara Jaffe, J.), entered March 8, 2018, which denied defendant's motion for summary judgment dismissing the complaint and granting its counterclaims, unanimously affirmed, without costs. The parties entered into a commercial real estate contract for plaintiff to use three floors of defendant's building as retail space. Prior to the lease, the premises and an adjacent property were a single combined space, occupied by one retail store. The parties agreed that the defendant would divide the space into two retail stores. After the dividing wall was erected, the parties discovered that it eliminated one of the required exits for the upper two floors of plaintiff's store, invalidating the Certificate of Occupancy. Plaintiff seeks, among other things, rescission of the lease based on mutual mistake (Eisenberg v Hall, 147 AD3d 602, 604 [1st Dept 2017]). Defendant counters that plaintiff is precluded from invoking mutual mistake because of its conscious ignorance of the potential adverse impact that the construction of the wall would have on its anticipated use of the space (P.K. Dev. v Elvem Dev. Corp., 226 AD2d 200, 201-202 [1st Dept 1996]). This record does not permit resolution of these issues as a matter of law. We have considered defendants' remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: NOVEMBER 29, 2018 CLERK