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Note: 53rd and Madison Tower Development LLC (Lessor) leased a portion of a building to Tourneau, LLC (Lessee). The lease required Lessor to perform specific work to prepare the premises for Lessee. After notification by Lessor to Lessee of substantial completion of the work, the lease term of occupancy would commence although at a date unspecified. The lease imposed a substantial completion date of January 31, 2009 and an outside deadline of December 31, 2009 for total completion. The lease provided for two remedies for Lessee: the first being a day-to-day rent abatement if Lessor failed to meet the substantial completion deadline and the other being a right to cancel the lease if Lessor did not meet the outside deadline. The lease also required Lessee to obtain a standby letter of credit in favor of Lessor.

Lessor missed the substantial completion date. The building then suffered minor fire damage which delayed Lessor's ongoing work. Lessor informed the lessee of the fire, its force majeure nature, and the resulting delay in work by letter. Lessee responded, stating that a violation of the rule against perpetuities had occurred and that the lease was void due to an indefinite commencement date. Lessee requested the immediate return of its standby and subsequently sued Lessor for "declatory and injunctive relief and damages based on alleged violations of the rule against perpetuities".

Lessor asserted that Lessee's claim that the lease violated the rule of perpetuities was a subterfuge to avoid enforceable obligations. The Rule Against Perpetuities is a Common Law provision that seeks to prevent indefinite obligations running perpetually. In addition to claiming that the lease violated the rule of perpetuities, Lessee had claimed that the lease did not grant it a right to demand specific performance, and that its right to take possession never fully vested within the perpetuities period, constituting an unreasonable restraint on alienation. Lessor moved for summary judgment and the Supreme Court, New York County, Bernard J. Fried, J., granted Lessor's motion for summary judgment. The Judge determined that the lease evinced the intent of Lessor to comply with the rule against perpetuities because it included specific times for Lessor's performance of specific work as well as remedies for Lessee. The court also determined that there was no unreasonable restraint on alienation even though Lessee may be dissatisfied with the remedies provided for in the lease.

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