You are here: / / Constructive Condition Precedent Properly Fashioned by Court
,

Constructive Condition Precedent Properly Fashioned by Court

In a full-fledged opinion by Justice Friedman, the First Department agreed with Supreme Court’s fashioning of a constructive condition precedent for the collection of additional rent under a lease. The First Department quoted the controlling law from the Court of Appeals:

“A condition precedent is an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises’ … . Most conditions precedent describe acts or events which must occur before a party is obliged to perform a promise made pursuant to an existing contract, a situation to be distinguished conceptually from a condition precedent to the formation or existence of the contract itself . . . .

“Conditions can be expressed or implied. Express conditions are those agreed to and imposed by the parties themselves. Implied or constructive conditions are those imposed by law to do justice’ … . Express conditions must be literally performed, whereas constructive conditions, which ordinarily arise from language of promise, are subject to the precept that substantial compliance is sufficient. The importance of the distinction has been explained by Professor Williston:

Since an express condition . . . depends for its validity on the manifested intention of the parties, it has the same sanctity as the promise itself. Though the court may regret the harshness of such a condition, as it may regret the harshness of a promise, it must, nevertheless, generally enforce the will of the parties unless to do so will violate public policy. Where, however, the law itself has imposed the condition, in absence of or irrespective of the manifested intention of the parties, it can deal with its creation as it pleases, shaping the boundaries of the constructive condition in such a way as to do justice and avoid hardship’. (5 Williston, Contracts § 669, at 154 [3d ed].)” Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co. (86 NY2d 685, 690-691 [1995]).  Mount Sinai Hosp v 1998 Alexander Karten Annuity Trust, 2013 NY Slip Op 05667, 1st Dept 8-20-13

 

You might also like
DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT).
NEW YORK HAS JURISDICTION OVER OUT-OF-STATE DEFENDANT JUUL LABS, THE MANUFACTURER OF ELECTRONIC CIGARETTES, AND TWO CORPORATE OFFICERS IN AN ACTION ALLEGING DECEPTIVE BUSINESS PRACTICES, FRAUD AND PUBLIC NUISANCE (FIRST DEPT). ​
LETTER WRITTEN BY PETITIONER UPON INVOLUNTARY ADMISSION TO A HOSPITAL SHOULD HAVE BEEN SEEN AS A DEMAND FOR AN EXPEDITED CHALLENGE TO THE CONFINEMENT UNDER THE MENTAL HYGIENE LAW (HABEAS CORPUS), ALTHOUGH THE ISSUE IS MOOT IN THIS CASE, THE ISSUE WAS HEARD ON APPEAL BECAUSE IT IS LIKELY TO RECUR (FIRST DEPT).
DEFENDANT WAS ADJUDICATED A YOUTHFUL OFFENDER AND SENTENCED TO 60 DAYS IN JAIL AND FIVE YEARS PROBATION FOR STEALING A BREAKFAST SANDWICH FROM A RESTAURANT; EXTENSIVE DISSENT ARGUED THE SENTENCE WAS HARSH AND EXCESSIVE (FIRST DEPT).
AN ARTICLE 78 REVIEW OF THE RESPONSE TO A FOIL REQUEST MAY ONLY CONSIDER THE GROUND FOR THE INITIAL AGENCY DECISION; THE GROUNDS FOR A SUBSEQUENT DECISION ISSUED AFTER THE ARTICLE 78 PROCEEDING WAS COMMENCED SHOULD NOT HAVE BEEN CONSIDERED; PETITIONER’S REQUEST FOR THE METADATA OF THE DISCLOSED DOCUMENTS MUST BE DENIED BECAUSE METADATA WAS NOT ‘REASONABLY DESCRIBED’ IN THE FOIL REQUEST (FIRST DEPT).
RESPONDENT WAS A CUSTOMER OF PETITIONER SECURITIES CORPORATION WITHIN THE MEANING OF FINANCIAL INDUSTRY REGULATORY AUTHORITY (FIRA) RULES AND THEREFORE COULD COMPEL ARBITRATION (FIRST DEPT). ​
Cause of Action for Breach of Covenant of Good Faith and Fair Dealing Should Be Dismissed When It Is the Same as the Breach of Contract Claim
DEFENDANT WAS TOLD BY DEFENSE COUNSEL WHEN HE PLED GUILTY IN 2007 THAT IF HE STAYED OUT OF TROUBLE WHILE ON PROBATION HE WOULD NOT BE DEPORTED, HOWEVER DEPORTATION WAS MANDATORY; DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL; CRITERIA FOR DETERMINING WHETHER THERE WAS A REASONABLE PROBABILITY DEFENDANT WOULD HAVE GONE TO TRIAL, INCLUDING HIS UNDISPUTED STRONG DESIRE TO STAY IN THE US, EXPLAINED IN SOME DEPTH (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Applying New Jersey Law—Removal of Safety Guard from Machine Did Not Destroy... Uniform Act to Secure Attendance of Witnesses from Without the State in Criminal...