On May 6, 2025, the First Department issued a decision in JAB Bldg., LLC v. 950 Third Ave. LLC, 2025 NY Slip Op. 02723, holding that the repudiation of a contract was timely withdrawn, returning the contract to effectiveness, explaining:
The parties entered into a 55-year lease of air rights in July 1970, which tenant had the right to renew by notice given by July 1, 2024. In October 2021 and January 2022, defendant informed landlord that it would not be renewing the lease and also would not be reversing the transfer of air rights, while proposing terms to resolve the parties’ situation. In January 2024, after landlord had commenced this action seeking, among other things, a declaratory judgment concerning its rights, tenant changed its position and served notice of renewal.
Assuming that the tenant’s two emails can be construed as an unequivocal waiver of its right to renew, rather than a statement of its current intention in the context of negotiations, any waiver was properly withdrawn by tenant. A waiver, being unilateral, and not being a binding agreement, can, to the extent that it is executory, be withdrawn, provided that, if the other party’s performance has been waived, that party is given notice of withdrawal and a reasonable time after notice within which to perform. Furthermore, tenant was not equitably estopped from withdrawing any waiver of its own right to renew the contract since plaintiff landlord did not detrimentally rely thereon or suffer any damages as a result of tenant’s change in position. Landlord has not indicated that it was prejudiced by tenant’s October 2021 and January 2022 emails other than by choosing to proactively litigate the air rights issue before it suffered damages, which would not occur until the end of the lease.
(Internal citations omitted).