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CPS OPERATING v. PATHMARK

604262/07, 1643.

76 A.D.3d 1 (2010)

902 N.Y.S.2d 46

CPS OPERATING COMPANY LLC, Respondent, v. PATHMARK STORES, INC., Appellant.

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

Decided June 1, 2010.

Attorney(s) appearing for the Case

Pillsbury Winthrop Shaw Pittman LLP, New York City ( E. Leo Milonas , Frederick A. Brodie and Anne C. Lefever of counsel), for appellant.

Morrison Cohen LLP, New York City ( Y. David Scharf and David A. Piedra of counsel), for respondent.

FRIEDMAN, RENWICK and ABDUS-SALAAM, JJ., concur with ACOSTA, J.; SAXE, J.P., dissents in a separate opinion.

OPINION OF THE COURT

ACOSTA, J.

This appeal requires us to consider whether a real estate agreement, with an underlying consent requirement, negotiated at arm's length by sophisticated, counseled business people with full knowledge of the consent requirement and its potential risks, must be vacated. On the facts of this case, where plaintiff is using the consent requirement to avoid its obligations under the agreement...

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