Q: Commercial rent dispute in NY. Judge set prelim. conference after SJ motion. Should defense try to settle before prelim?
Plaintiff filed claim for unpaid rent. Defense responded that they were unable to pay rent due to COVID and BLM protests (and thus, are not in breach), and are invoking force majeure clause. Plaintiff filed motion for summary judgment. Defense responded to summary judgment motion. Judge now set preliminary hearing request. Should the defense try to settle case before preliminary hearing, or wait until after?
A: Either could work. Generally, settling earlier rather than later is often in the parties' best interests because they reduce their overall transaction costs. The longer the dispute continues, the more the parties have to expend in furthering their interests. However, often settling early is just not an option. There are a number of unique defenses available to NY commercial tenants due to COVID and various executive orders. It would be wise to consult with a lawyer to understand all your options.
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