Case Brief Oppenheimer

Olympia offered to pay the rent for the remaining three years of Oppenheimer & Co., Inc. (Oppenheimer’s) (plaintiff) lease at One New York Plaza if Oppenheimer could not sublease the space, hoping that Oppenheimer would then agree to move into Olympia’s World Financial Center. In 1986 Oppenheimer and Oppenheimer, Appel, Dixon & Co. (OAD) entered into a conditional letter agreement to lease Oppenheimer’s space at One New York Plaza, providing Oppenheimer would first obtain written consent of the landlord by a certain date to proposed construction by OAD. The agreement provided that if Oppenheimer failed to obtain written consent the agreement was to be deemed null and void. Oppenheimer’s attorney telephone OAD’s attorney on the day of the deadline and informed him that the landlord’s consent had been obtained. The following day OAD informed Oppenheimer that the agreement and sublease were invalid for failure to timely deliver the landlord’s written consent. Oppenheimer filed suit for breach of contract, asserting that OAD waived or was estopped by virtue of its conduct from insisting on the physical delivery of the landlord’s written consent and that Oppenheimer had substantially performed the conditions set forth in the letter agreement. The jury awarded Oppenheimer damages of $1.2 million, but a motion for judgment notwithstanding the verdict was granted on the substantial performance doctrine issue. The appellate division reversed, allowing the jury verdict.

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Rule of Law

Absent some forfeiture or unjust enrichment, substantial performance is not applicable to excuse the nonoccurrence of an express condition precedent.

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Issue

Whether a party breaches a contract by not performing when the other party fails to satisfy a condition precedent.

Holding and Reasoning (Ciparick, J.)

No. A condition precedent is an act or event, other than a lapse of time, which, unless the condition is...