71 A.D.3d 822 (2010)

897 N.Y.S.2d 487

FOUR ASTERIA REALTY, LLC, Respondent, v. BCP BANK OF NORTH AMERICA et al., Appellants.

Appellate Division of the Supreme Court of New York, Second Department.

Decided March 16, 2010.

Ordered that the order is affirmed insofar as appealed from, with costs.

We agree with the Supreme Court that the termination clause in the subject commercial lease, when read in conjunction with the other terms of that agreement, indicates that the defendant BCP Bank of North America (hereinafter BCP) was obligated to seek governmental approval as a condition precedent to terminating the lease (see Norgate Homes v Central State Bank, 82 A.D.2d 849 [1981]). The Supreme Court correctly determined that, even if BCP proceeded diligently and used its best efforts to obtain governmental approval, BCP failed to exercise its right to terminate the lease within a reasonable time under the circumstances of this particular case (see Savasta v 470 Newport Assoc., 82 N.Y.2d 763 [1993]; Ben Zev v Merman, 73 N.Y.2d 781 [1988]).

BCP's contention that it was entitled to terminate the lease due to impossibility of purpose is without merit. The very provision of the lease upon which BCP relies evinces that the parties contemplated the risk of BCP's failure to obtain the necessary governmental approval. Consequently, the failure to obtain such approval was a foreseeable event and, thus, BCP cannot rely on impossibility of purpose to excuse its performance under the lease (see Kel Kim Corp. v Central Mkts., 70 N.Y.2d 900, 902 [1987]; Matter of A&S Transp. Co. v County of Nassau, 154 A.D.2d 456 [1989]; see also 14 Corbin on Contracts § 76.5). In any event, the Supreme Court correctly determined that BCP, by its execution of an estoppel certificate on June 12, 2007, attesting to the validity of the lease and denying the existence of any claims against the plaintiff, nearly a year after its execution of the lease, waived its right to terminate the lease (see Hammelburger v Foursome Inn Corp., 54 N.Y.2d 580, 586-587 [1981]), especially since BCP continued to pay its rent before and after executing the estoppel certificate (see Rothschild v Title Guar. & Trust Co., 204 N.Y. 458, 464 [1912]).

Accordingly, the Supreme Court correctly denied that branch of BCP's motion which was for summary judgment dismissing the first cause of action to recover damages for breach of the lease insofar as asserted against it, and correctly, in effect, searched the record and awarded summary judgment on the issue of liability in favor of the plaintiff on this cause of action (see CPLR 3212 [b]). For the same reasons, the Supreme Court correctly denied that branch of the defendants' motion which was for summary judgment on BCP's counterclaim, which sought a determination that BCP's termination of the lease was valid and, in effect, upon searching the record, dismissing the counterclaim.

BCP's remaining contentions have been rendered academic in light of our determination.


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