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Van Wagner Advertising Corp. v. S & M Enterprises

Citation. 501 N.Y.S.2d 628 (Court of Appeals of New York, 1986)
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Brief Fact Summary.

Van Wagner Advertising Corporation entered into a billboard lease for a prime space in Manhattan New York.  The building was later sold to S&M Enterprises, which notified Van Wagner that it was terminating the lease, and Van Wagner sought specific performance of the contract.

Synopsis of Rule of Law.

The point at which specific performance will be available for a breach of contract must lie not in any inherent physical uniqueness of the property, but instead in the uncertainty of valuing it.  


Van Wagner’s lease was for billboard space on the eastern exterior wall of a building on East 36th Street, which faced an exit ramp of Midtown Tunnel and was viewable to vehicles entering Manhattan.  The original Lessor sold the building to S&M, and S&M notified Van Wagner that it was terminating the contract, pursuant to §1.05 of the lease.  Van Wagner abandoned the space under protest, and commenced this action for specific performance and damages. 

The Trial Term concluded that only the original Lessor, and not the future purchaser (S&M) could terminate the lease at will.  It declared the lease valid and subsisting and found that the space was a unique location, but did not award specific performance because it found Van Wagner had an adequate remedy at law—the lost revenue’s on its sublease for the billboard space for the period through the trial.  The Appellate Division affirmed.  


Was Van Wagner entitled to specific performance under the contract?


No.  The order of the Appellate Division should be modified, with costs to the Plaintiff, and remanded for further proceedings in accordance with this opinion. 

Specific performance was properly denied, but the court erred its assessment of damages, which should have been awarded through the expiration of Van Wagner’s lease. 






The fact that the billboard space was unique did not open a magic door to specific performance. 

Since Van Wagner had an adequate (monetary) remedy available at law, specific performance was not available to him. 

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