acceleration clause in New York

2021Corp. v Pioneer Auto Parks ( 46 NY2d 573, 576-577 [1979], rearg denied 47 NY2d 801 [1979]) as the seminal case in determining whether equity should intervene to preclude enforcement of the acceleration clause.

1984Corp. v Pioneer Auto Parks ( 46 NY2d 573 ) the Court of Appeals was confronted with the question of when equity should intervene to bar enforcement of an acceleration clause.

2025However, in the absence of an acceleration clause, plaintiffs right to recover monthly rent payments does not ripen until each payment becomes due and owing (Beaumont Offset Corp. v Zito, 256 A.D.2d 372, 372 [2d Dept 1998]; Martin v. Glenzan Assocs., Inc., 426 N.Y.S.2d 347, 348 [3d Dept 1980] [without an acceleration clause, 158881/2021 OGBOLU, COLLINS vs. 125 PROPERTY MASTERS, INC.

2024As a general matter, “no action can be brought for future rent in the absence of an acceleration clause” (Beaumont Offset Corp. v Zito, 256 AD2d 372, 373 [2nd Dept 1998]; see also Islip U-Slip LLC v Gander Mtn.

2024Upon a tenant's default under a lease, the tenant is liable for unpaid past [*3]due rent; absent an acceleration clause, the tenant is not liable for future rents ( see Utility Garage Corp. v National Biscuit Co. , 71 AD2d 578, 579 [1st Dept 1979]; see also Long Is.

2024Upon a tenant's default under a lease, the tenant is liable for unpaid past [*3]due rent; absent an acceleration clause, the tenant is not liable for future rents ( see Utility Garage Corp. v National Biscuit Co. , 71 AD2d 578, 579 [1st Dept 1979]; see also Long Is.

2025However, in the absence of an acceleration clause, plaintiffs right to recover monthly rent payments does not ripen until each payment becomes due and owing (Beaumont Offset Corp. v Zito, 256 A.D.2d 372, 372 [2d Dept 1998]; Martin v. Glenzan Assocs., Inc., 426 N.Y.S.2d 347, 348 [3d Dept 1980] [without an acceleration clause, 158881/2021 OGBOLU, COLLINS vs. 125 PROPERTY MASTERS, INC.

2024However, in the absence of an acceleration clause, plaintiff’s right to recover monthly rent payments does not ripen until each payment becomes due and owing (Beaumont Offset Corp. v Zito, 256 A.D.2d 372, 372 [2d Dept 1998]; Martin v. Glenzan Assocs., Inc., 426 N.Y.S.2d 347, 348 [3d Dept 1980] [without an acceleration clause, 158881/2021 OGBOLU, COLLINS vs. 125 PROPERTY MASTERS, INC.

2020Mellon v Dieudonne , 171 AD3d at 37, quoting 1 Bergman on New York Mortgage Foreclosures § 4.02; see Wells Fargo Bank, N.A. v Burke , 94 AD3d at 982-983 ).

2019However, even if a mortgage is payable in installments, the terms of the mortgage may contain an acceleration clause that gives the lender "the option to demand due the entire balance of principal and interest upon the occurrence of certain events delineated in the mortgage" (1 Bergman on New York Mortgage Foreclosures § 4.02; see Wells Fargo Bank, N.A. v Burke , 94 AD3d at 982-983 ).

2019Accordingly, "a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding" ( Sciangula v Montegut , 165 AD3d 1188 , 1190 [internal quotation marks omitted]; see Matter of Hunter , 4 NY3d at 269 ; Chapman Steamer Collective, LLC v KeyBank N.A. , 163 AD3d 760 , 761). "[N]o action can be brought for future rent in the absence of an acceleration clause" ( Beaumont Offset Corp. v Zito

2011Given the absence of an acceleration clause in the agreement, the plaintiff failed to demonstrate, prima facie, that he was entitled, under a theory of anticipatory breach, to the disputed monthly payments which had not yet accrued (see Runfola v Cavagnaro, 78 AD3d 1035, 1035 [2010]; Acacia Natl.

2013However, contrary to the Supreme Court’s holding, the tenant failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of the tenant’s post-termination liability for breach of the lease. “[T]he parties to a lease are not foreclosed from contracting as they please” (Holy Props. v Cole Prods., 87 NY2d 130, 134 [1995]; see International Publs. v Matchabelli, 260 NY 451, 454 [1933]; Mann v Munch Brewery, 225 NY 189, 194 [1919]; Hall v Gould, 13 NY 127, 133-134 [1855]; Gallery at Fulton St., LLC v Wendnew LLC, 30 AD3d 221, 222 [2006]), and, as the tenant correc

2013However, contrary to the Supreme Court’s holding, the tenant failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of the tenant’s post-termination liability for breach of the lease. “[T]he parties to a lease are not foreclosed from contracting as they please” (Holy Props. v Cole Prods., 87 NY2d 130, 134 [1995]; see International Publs. v Matchabelli, 260 NY 451, 454 [1933]; Mann v Munch Brewery, 225 NY 189, 194 [1919]; Hall v Gould, 13 NY 127, 133-134 [1855]; Gallery at Fulton St., LLC v Wendnew LLC, 30 AD3d 221, 222 [2006]), and, as the tenant correc

2013Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]).

2013Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]).

2013Assur., Ltd. v Schwartz, 69 AD3d 924, 925-926 [2010]).

2013Assur., Ltd. v Schwartz, 69 AD3d 924, 925-926 [2010]).

2013However, contrary to the Supreme Court’s holding, the tenant failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of the tenant’s post-termination liability for breach of the lease. “[T]he parties to a lease are not foreclosed from contracting as they please” (Holy Props. v Cole Prods., 87 NY2d 130, 134 [1995]; see International Publs. v Matchabelli, 260 NY 451, 454 [1933]; Mann v Munch Brewery, 225 NY 189, 194 [1919]; Hall v Gould, 13 NY 127, 133-134 [1855]; Gallery at Fulton St., LLC v Wendnew LLC, 30 AD3d 221, 222 [2006]), and, as the tenant correc

2013However, contrary to the Supreme Court’s holding, the tenant failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of the tenant’s post-termination liability for breach of the lease. “[T]he parties to a lease are not foreclosed from contracting as they please” (Holy Props. v Cole Prods., 87 NY2d 130, 134 [1995]; see International Publs. v Matchabelli, 260 NY 451, 454 [1933]; Mann v Munch Brewery, 225 NY 189, 194 [1919]; Hall v Gould, 13 NY 127, 133-134 [1855]; Gallery at Fulton St., LLC v Wendnew LLC, 30 AD3d 221, 222 [2006]), and, as the tenant correc

2013However, contrary to the Supreme Court’s holding, the tenant failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of the tenant’s post-termination liability for breach of the lease. “[T]he parties to a lease are not foreclosed from contracting as they please” (Holy Props. v Cole Prods., 87 NY2d 130, 134 [1995]; see International Publs. v Matchabelli, 260 NY 451, 454 [1933]; Mann v Munch Brewery, 225 NY 189, 194 [1919]; Hall v Gould, 13 NY 127, 133-134 [1855]; Gallery at Fulton St., LLC v Wendnew LLC, 30 AD3d 221, 222 [2006]), and, as the tenant correc

2013However, contrary to the Supreme Court’s holding, the tenant failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of the tenant’s post-termination liability for breach of the lease. “[T]he parties to a lease are not foreclosed from contracting as they please” (Holy Props. v Cole Prods., 87 NY2d 130, 134 [1995]; see International Publs. v Matchabelli, 260 NY 451, 454 [1933]; Mann v Munch Brewery, 225 NY 189, 194 [1919]; Hall v Gould, 13 NY 127, 133-134 [1855]; Gallery at Fulton St., LLC v Wendnew LLC, 30 AD3d 221, 222 [2006]), and, as the tenant correc

2013However, contrary to the Supreme Court’s holding, the tenant failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of the tenant’s post-termination liability for breach of the lease. “[T]he parties to a lease are not foreclosed from contracting as they please” (Holy Props. v Cole Prods., 87 NY2d 130, 134 [1995]; see International Publs. v Matchabelli, 260 NY 451, 454 [1933]; Mann v Munch Brewery, 225 NY 189, 194 [1919]; Hall v Gould, 13 NY 127, 133-134 [1855]; Gallery at Fulton St., LLC v Wendnew LLC, 30 AD3d 221, 222 [2006]), and, as the tenant correc

2013However, contrary to the Supreme Court’s holding, the tenant failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of the tenant’s post-termination liability for breach of the lease. “[T]he parties to a lease are not foreclosed from contracting as they please” (Holy Props. v Cole Prods., 87 NY2d 130, 134 [1995]; see International Publs. v Matchabelli, 260 NY 451, 454 [1933]; Mann v Munch Brewery, 225 NY 189, 194 [1919]; Hall v Gould, 13 NY 127, 133-134 [1855]; Gallery at Fulton St., LLC v Wendnew LLC, 30 AD3d 221, 222 [2006]), and, as the tenant correc

2013However, contrary to the Supreme Court’s holding, the tenant failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of the tenant’s post-termination liability for breach of the lease. “[T]he parties to a lease are not foreclosed from contracting as they please” (Holy Props. v Cole Prods., 87 NY2d 130, 134 [1995]; see International Publs. v Matchabelli, 260 NY 451, 454 [1933]; Mann v Munch Brewery, 225 NY 189, 194 [1919]; Hall v Gould, 13 NY 127, 133-134 [1855]; Gallery at Fulton St., LLC v Wendnew LLC, 30 AD3d 221, 222 [2006]), and, as the tenant correc

2013However, contrary to the Supreme Court’s holding, the tenant failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of the tenant’s post-termination liability for breach of the lease. “[T]he parties to a lease are not foreclosed from contracting as they please” (Holy Props. v Cole Prods., 87 NY2d 130, 134 [1995]; see International Publs. v Matchabelli, 260 NY 451, 454 [1933]; Mann v Munch Brewery, 225 NY 189, 194 [1919]; Hall v Gould, 13 NY 127, 133-134 [1855]; Gallery at Fulton St., LLC v Wendnew LLC, 30 AD3d 221, 222 [2006]), and, as the tenant correc

2021"As a general rule, in the absence of an acceleration clause providing for the entire amount of a note to be due upon the default of any one installment, [a plaintiff is] only entitled to recover past due installments and [can]not unilaterally declare the note[] accelerated" ( Libeson v Copy Realty Corp. , 167 AD2d 376, 377 [2d Dept 1990]; see generally Barr v Country Motor Car Group, Inc. , 15 AD3d 985, 986 [4th Dept 2005], lv denied 6 NY3d 704 [2006]).

2021Here, the record is devoid of any evidence of an acceleration clause and, thus, plaintiff was entitled to recover "only the amount of the installments past due at the time of trial" ( Admae Enters. v Smith , 222 AD2d 471, 472 [2d Dept 1995]; see Libeson , 167 AD2d at 377 ).

2019Corp. v Tovar , 150 AD3d 657, 658 ; Clayton Natl. v Guldi , 307 AD2d 982 ; City Sts.

2016(Id.; see also Fannie Mae v 133 Mgt., LLC, 126 AD3d 670 , 670 [2d Dept 2015] [“the plaintiffs commencement of the action and filing of a notice of pendency constituted a valid election to accelerate the maturity of the debt”]; Charter One Bank, FSB v Leone, 45 AD3d 958, 958 [3d Dept 2007] [“plaintiff’s act of commencing the action and the filing of a lis pendens constitutes a valid election to accelerate the maturity of the unpaid principal balance and accrued interest”]; Clayton Natl. v Guldi, 307 AD2d 982, 982 [2d Dept 2003] [“The filing of the summons and complaint and lis pendens in an act

2014As a general matter parties are free to agree to a liquidated damages clause “provided that the clause is neither unconscionable nor contrary to public policy” (Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 NY2d 420, 424 [1977], citing Mosler Safe Co. v Maiden Lane Safe Deposit Co., 199 NY 479, 485 [1910]).

1969(See Mosler Safe Co. v. Maiden Lane Safe Deposit Co., 199 N. Y. 479 .) Under Clause 13 the lessor not only has the right to repossess the machine but also the right to accelerate all of the unaccrued rent, that is, to receive a sum equal to all of the yet unearned rent, no matter how large a sum that might be, upon the lessee’s failure to pay rent when due or upon any other default, no matter how trivial, e.g., “ interfering ” with a metal plate inscribed “ Property of U-Vend, Inc.” (Clause 17.) The acceleration clause in this instance must be distinguished from that in the usual note situatio

2014Thus, unlike the landowner in Fifty States, Van Duzer is not seeking to deploy the acceleration clause in the course of a continuing leasehold for purposes of ensuring the tenant’s compliance with a material provision of the lease. *535 Nor can defendants challenge the validity of the acceleration clause based on this Court’s recognition in Fifty States that, “where a lease provides for acceleration as a result of a breach of any of its terms, however trivial or inconsequential, such a provision is likely to be considered an unconscionable penalty and will not be enforced by a court of equity”

2014Thus, unlike the landowner in Fifty States, Van Duzer is not seeking to deploy the acceleration clause in the course of a continuing leasehold for purposes of ensuring the tenant’s compliance with a material provision of the lease. *535 Nor can defendants challenge the validity of the acceleration clause based on this Court’s recognition in Fifty States that, “where a lease provides for acceleration as a result of a breach of any of its terms, however trivial or inconsequential, such a provision is likely to be considered an unconscionable penalty and will not be enforced by a court of equity”

2014As an initial matter, we reject defendants’ res judicata argument because the Civil Court was without authority to address a claim for the balance of rent due under the acceleration clause in Van Duzer’s holdover proceeding (NY City Civ Ct Act § 204; see also Ross Realty v V & A Fabricators, Inc., 42 AD3d 246 [2d Dept 2007]; Marketplace v Smith, 181 Misc 2d 440, 442-443 [Henrietta Just Ct, Monroe County 1999]).

2014As an initial matter, we reject defendants’ res judicata argument because the Civil Court was without authority to address a claim for the balance of rent due under the acceleration clause in Van Duzer’s holdover proceeding (NY City Civ Ct Act § 204; see also Ross Realty v V & A Fabricators, Inc., 42 AD3d 246 [2d Dept 2007]; Marketplace v Smith, 181 Misc 2d 440, 442-443 [Henrietta Just Ct, Monroe County 1999]).

2010An acceleration clause, in order to be enforceable so as to mature the entire debt for purposes of foreclosure, must be clear and certain” (Brayton v Pappas, 52 AD2d 187, 189 [1976]; see Bodwitch v Allen, 91 AD2d 1177, 1178 [1983]).

1992Additionally, an acceleration clause, in order to be enforceable so as to mature the entire debt for purposes of personal guarantee agreements, must be clear and certain and will not be supplied by inference (cf., Brayton v Pappas, 52 AD2d 187, 189 ).

1984The court went on to state: “In such a case, the failure of the landlord to accept a cure for a trifling mistake without prejudice to himself and then seek enforcement of the acceleration clause would be at least exploitive and, perhaps, unconscionable (see Giles v Austin, 62 NY 486, 493-494 ; cf. Jones v Gianferante, 305 NY 135, 138)” (Fifty States Mgt.

1979In such a case, the failure of the landlord to accept a cure for a trifling mistake without prejudice to himself and then seek enforcement of the acceleration clause would be at least exploitive and, perhaps, unconscionable (see Giles v Austin, 62 NY 486, 493-494 ; cf. Jones v Gianferante, 305 NY 135, 138 ).

1962(A rnot v. Union Salt Co., 186 N. Y. 501, 510, 511 .) An equitable estoppel results where one party to a contract, before the time for performance by the other party arrives, consents, upon request, to extend the time of performance, for he is presumed to know that the other party relies upon the consent, and until notice of withdrawal is given there will be no default, although the contract time has elapsed.

1931In Arnot v. Union Salt Co. ( 186 N. Y. 501 ) the court said (at p. 510): “A waiver of strict payment by extending the time in which it may be made is inconsistent with a claim that there has been a default which -^entitles a mortgagee to proceed under an acceleration clause in a bond and mortgage,” and (at p. 511): “ If the time for payment has been extended by the consent of the creditor, but no certain time is fixed for payment, the creditor cannot thereafter insist upon immediate payment under penalty of a forfeiture of the contract, but the debtor is entitled to a reasonable time after not