August Term 2025 Argued: January 21, 2026 Decided: May 5, 2026 Nos. 25-148 & 25-237… v. Free People of Pa LLC

25-148-(L)
Delshah 60 Ninth, LLC v. Free People of PA LLC
United States Court of Appeals
For the Second Circuit
August Term 2025
Argued: January 21, 2026
Decided: May 5, 2026
Nos. 25-148 & 25-237
D ELSHAH 60 NINTH , LLC,
Plaintiff-Counter-Defendant-Appellee-Cross-Appellant,
v.
F REE PEOPLE OF PA LLC,
Defendant-Counter-Claimant-Appellant-Cross-Appellee
Appeal from the United States District Court
for the Southern District of New York
No. 20-cv-5905, Jesse M. Furman, Judge.
Before: LEVAL , L YNCH , AND S ULLIVAN, Circuit Judges.
These appeals involve a commercial landlord–tenant dispute arising out of
emergency orders issued at the height of the COVID-19 pandemic. Free People
of PA LLC (“Free People”) operated a Manhattan-based retail clothing store that
it leased from Delshah 60 Ninth, LLC (“Delshah”). But when New York ordered
businesses to shut down in March 2020, Free People stopped paying rent, pointing

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to the lease agreement’s exception for government takings. Disagreeing with
Free People’s interpretation of the takings provision, Delshah terminated the lease
and sued for breach of contract, seeking to recover damages for the rent due under
the lease. Free People then counterclaimed for a declaratory judgment, breach of
contract, money had and received, and unjust enrichment, premised on Delshah’s
allegedly wrongful termination of the lease and retention of two inadvertent
payments that Free People made after Delshah terminated the lease and Free
People vacated the premises.
On appeal, Free People argues that the district court erred in granting
summary judgment in favor of Delshah on Delshah’s claim for breach of contract,
in rejecting Free People’s counterclaims for breach of contract and unjust
enrichment, and in assessing Delshah’s damages. Delshah cross-appeals,
arguing that the district court’s damages award in its favor was too low. For the
following reasons, we hold that the district court misinterpreted the lease’s takings
provision and accordingly reverse its grant of summary judgment to Delshah on
its claim for breach of contract. We also conclude that the district court erred in
denying Free People’s motion for summary judgment on its counterclaim for
breach of contract and in dismissing Free People’s counterclaim for unjust
enrichment. And because we reverse the district court’s judgment with respect
to liability, we do not address the parties’ challenges to the court’s damages award.
WILLIAM F. S AVINO (Bernard Schenkler, on the
brief), Woods Oviatt Gilman LLP, Buffalo, NY.
G IL FEDER (Edward J. Delman, on the brief), Loeb &
Loeb LLP, New York, NY.
Bradley S. Silverbush, Rosenberg & Estis, P.C.,
New York, NY, for Plaintiff-Counter-Defendant-
Appellee-Cross-Appellant.
MARK D. TATICCHI (Elizabeth M. Casey, on the
brief), Faegre Drinker Biddle & Reath LLP,
Philadelphia, PA, Defendant-Counter-Claimant-
Appellant-Cross-Appellee.

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PER C URIAM :
These appeals involve a commercial landlord–tenant dispute arising out of
emergency orders issued at the height of the COVID-19 pandemic. Free People
of PA LLC (“Free People”) operated a Manhattan-based retail clothing store that
it leased from Delshah 60 Ninth, LLC (“Delshah”).1 But when New York ordered
businesses to shut down in March 2020, Free People stopped paying rent, pointing
to the lease agreement’s exception for government takings. Disagreeing with
Free People’s interpretation of the takings provision, Delshah terminated the lease
and sued for breach of contract, seeking to recover damages for the rent due under
the lease. Free People then counterclaimed for a declaratory judgment, breach of
contract, money had and received, and unjust enrichment, premised on Delshah’s
allegedly wrongful termination of the lease and retention of two inadvertent
payments that Free People made after Delshah terminated the lease and Free
People vacated the premises.
On appeal, Free People argues that the district court erred in granting
summary judgment in favor of Delshah on Delshah’s claim for breach of contract,
1 In February 2020, Free People merged with Anthropologie LLC to form a new entity
called URBN US Retail LLC. For consistency, we refer to the defendant in this litigation
as Free People.

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in rejecting Free People’s counterclaims for breach of contract and unjust
enrichment, and in assessing Delshah’s damages. Delshah cross-appeals,
arguing that the district court’s damages award in its favor was too low. For the
following reasons, we hold that the district court misinterpreted the lease’s takings
provision and accordingly reverse its grant of summary judgment to Delshah on
its claim for breach of contract. We also conclude that the district court erred in
denying Free People’s motion for summary judgment on its counterclaim for
breach of contract and in dismissing Free People’s counterclaim for unjust
enrichment. And because we reverse the district court’s judgment with respect
to liability, we do not address the parties’ challenges to the court’s damages award.
I. BACKGROUND
Free People “is an American apparel and lifestyle retail company that sells
women’s clothing, accessories, shoes, intimates[,] and swimwear in approximately
136 stores across the United States, Europe[,] and Canada.” App’x at 1317. In
2015, Free People and Delshah executed a ten-year lease for a commercial space
located at 58-60 Ninth Avenue, in the Meatpacking District of Manhattan. 2
2 As its name suggests, the Meatpacking District was once home to many
slaughterhouses and meatpacking plants, but it has since evolved into a high-fashion
district.

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According to Free People, “[t]he purpose of the Lease was to provide Free People
with commercial retail space suitable for the operation of a brick-and-mortar retail
store in a well-trafficked and highly desirable neighborhood in Manhattan.” Id.
at 1318. To that end, the lease authorized Free People to “use[] and occup[y]” the
space for any “Permitted Uses,” id. at 796, which the lease defined as follows:
Any general retail use, including the display and sale of apparel,
shoes and accessories, gifts, cards, furniture, home furnishings,
housewares, packaged foods prepared for off-site consumption,
plants, fresh and dried flowers, pots, containers and stands for plants
or flowers, and/or items related to the foregoing, together with
ancillary office and storage use.
Id. at 791. In December 2016, Free People “opened a retail apparel store” on the
premises. Dist. Ct. Doc. No. 88 ¶ 20.
In return, the lease obligated Free People to make monthly rent payments,
subject to the following provision regarding a government “taking”:
If any portion(s) of the Leased Space is taken or condemned for a
public or quasi-public use by any lawful power or authority, or if
Tenant is denied access to or egress from the Leased Space by any
action or decree of any lawful power or authority or as a result of
natural or other disaster, or if Tenant is denied or deprived of either
the use, occupancy and/or enjoyment of the Leased Space and/or the
ability to operate its business thereon or therefrom by action or decree
of any lawful power or authority or as a result of natural or other
disaster, or by any oral or written agreement between Landlord or
any such power or authority or by the acquiescence of Landlord
(individually, and collectively, a “taking”), and the taking is not
deemed “temporary” (as that term is hereinafter defined), this Lease

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shall, as to the part that is subject to the taking, terminate as of the
date Tenant is denied or deprived of such possession, use, occupancy,
enjoyment and/or operation of or on the Leased Space, and the Rent
due hereunder shall be reduced proportionately by the square footage
of the Leased Space that is so affected.
App’x at 816–17. In the event of a “temporary taking” – when the “Tenant has
the expectation that, within three hundred sixty-five (365) days after the taking,
Tenant’s access and egress to and from the Leased Space, and/or Tenant’s
possession, use, occupancy, enjoyment and operation of or on the Leased Space,
as the case may be, shall be restored” – the lease entitled Free People to a reduction
in rent in proportion to the amount of space affected by the taking.3 Id. at 817.
Responding to the rapid spread of COVID-19 in early 2020, then-Governor
Andrew Cuomo and then-Mayor Bill de Blasio issued a number of executive
orders and related guidance restricting commercial activities in New York State
and New York City, respectively. As a result of these orders, businesses except
for take-out or delivery services were closed to the public as of March 16, 2020,
and Free People employees were unable to enter the leased premises between
March 22 and April 9, 2020. On April 9, the New York State Department of
Economic Development issued guidance allowing retailers like Free People to
3 The parties appear to agree, or at least do not dispute before us, that the alleged taking
was a temporary one.

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have only a single employee at any given time enter the business premises to fulfill
online orders from inventory stored on-site. By early June, the government began
permitting clothing retailers like Free People to allow curbside pickup for online
and telephone orders. Then, on June 22, 2020, the government greenlighted
retailers to resume in-store shopping in compliance with various health and safety
guidelines, including occupancy restrictions and physical distancing; that same
day, Free People welcomed customers back into the store in compliance with those
guidelines.
In the meantime, Free People had largely been withholding rent, asserting
that it was entitled to do so as a result of New York’s emergency orders because it
“ha[d] not been able to operate [its] business.” Id. at 1156. Eventually, Delshah
served a notice of termination under the lease based on Free People’s failure to pay
rent and directed Free People to vacate the premises by June 10. Free People did
not do so, and Delshah sued for breach of contract in New York state court, seeking
to recover the amount of unpaid rent allegedly due under the lease up to the date
of termination, plus the aggregate amount of rent that would have been payable
for the remainder of the lease term, less any amounts that Free People could prove
that Delshah could have reasonably avoided.

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After removing the case to federal court, Free People counterclaimed for a
declaration that it did not owe any rent under the lease and for damages based on
breach of contract, money had and received, and unjust enrichment. Specifically,
Free People alleged that the lease’s takings provision excused it from paying rent
for the months at issue and that, as a result, Delshah had wrongfully terminated
the lease. Free People also claimed that Delshah misapplied a partial rent
payment from May 15, 2020 and wrongfully retained two further payments that
Free People mistakenly made in August and September 2020 – after Free People
had already vacated the premises.
After the close of discovery, Free People and Delshah cross-moved for
summary judgment. Magistrate Judge Sarah L. Cave, to whom those motions
had been referred, recommended granting Delshah’s motion and denying Free
People’s. Judge Cave concluded that the government’s emergency orders did not
effect a “taking” under the lease, and that Free People therefore breached its
obligation to pay rent. In particular, Judge Cave found that Free People
continued to make “general retail use” of the leased space during the period,
subject to the government’s emergency orders, including by displaying and
storing merchandise in the leased space, fulfilling online orders through inventory

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stored in the leased space, and advertising through signage on the outside of the
leased space. App’x at 31. Judge Cave also determined that Free People failed
to comply with the lease’s notice-and-cure provision, barring its counterclaim for
breach of contract. Finally, Judge Cave rejected Free People’s counterclaims for
money had and received and unjust enrichment as duplicative of its unsuccessful
contract claim.
The district court adopted Judge Cave’s report and recommendation in
substantial part and then referred the case again for a damages inquest. Following
the inquest, the district court entered final judgment in favor of Delshah, awarding
it $6,707,916.84 in damages plus interest. Free People timely appealed, and
Delshah timely cross-appealed the court’s damages calculation.
II. STANDARD OF R EVIEW
We review de novo a district court’s grant of summary judgment. Windward
Bora, LLC v. Wilmington Sav. Fund Soc’y, FSB, 982 F.3d 139, 141–42 (2d Cir. 2020).
“Summary judgment is appropriate ‘if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter
of law.’” Galloway v. County of Nassau, 141 F.4th 417, 422–23 (2d Cir. 2025)
(quoting Fed. R. Civ. P. 56(a)). In determining whether a party is entitled to

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summary judgment, we “constru[e] the evidence in the light most favorable to the
non-movant.” Alberty v. Hunter, 144 F.4th 408, 414 (2d Cir. 2025) (internal
quotation marks omitted).
We also review de novo a district court’s interpretation of a contract.
L. Debenture Tr. Co. of N.Y. v. Maverick Tube Corp., 595 F.3d 458, 468 (2d Cir. 2010).
When interpreting a contract, we begin with the principle, “axiomatic under New
York law, which the parties agree applies, that the fundamental objective of
contract interpretation is to give effect to the expressed intentions of the parties.”
Lockheed Martin Corp. v. Retail Holdings, N.V., 639 F.3d 63, 69 (2d Cir. 2011)
(alteration adopted and internal quotation marks omitted). “The best evidence of
what parties to a written agreement intend is what they say in their writing.”
L. Debenture Tr. Co., 595 F.3d at 468 (alteration adopted and internal quotation
marks omitted). If the contract “is unambiguous on its face, it must be enforced
according to the plain meaning of its terms.” Eternity Glob. Master Fund Ltd. v.
Morgan Guar. Tr. Co. of N.Y., 375 F.3d 168, 177 (2d Cir. 2004) (alteration adopted
and internal quotation marks omitted).

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III. DISCUSSION
A. Delshah’s Breach-of-Contract Claim
Free People seeks reversal of the district court’s grant of summary judgment
in Delshah’s favor on Delshah’s claim for breach of contract. With respect to that
claim, the district court held that “because Free People was never deprived of all
use or occupancy of the leased space, there was no taking, and Free People
remained obligated to pay rent.” App’x at 49–50. The court explained that Free
People remained able to store merchandise on the premises and therefore “never
fully lost the ‘use’ of the leased premises,” even during the times when its
employees were completely excluded from the store. Id. at 49. Free People
argues that the district court misconstrued the takings provision by failing to
separately consider whether Free People had nonetheless been prevented from
operating its business from the leased space. We agree.
Under the lease, a taking occurs when the tenant “is denied or deprived of
either the use, occupancy[,] and/or enjoyment of the Leased Space and/or the ability
to operate its business thereon or therefrom.” Id. at 816 (emphasis added). Thus,
“a taking can occur when . . . the tenant is unable to ‘operate its business’ on the
premises.” 195 B Owner LLC v. Anthropologie, Inc., 213 N.Y.S.3d 30, 32 (1st Dep’t

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2024). The district court, however, interpreted the takings provision as requiring
a showing that Free People was “deprived of all use or occupancy of the leased
space,” App’x at 49 (emphasis added), without considering whether Free People
had been denied the “ability to operate its business,” id. But the mere fact that
Free People had some use or occupancy of its premises does not necessarily mean
that it was able to operate its business there. The district court’s application of
the takings provision therefore “improperly render[ed] the alternate phrase
‘operate its business’ meaningless and without effect.” 195 B Owner LLC, 213
N.Y.S.3d at 32; see JN Contemp. Art LLC v. Phillips Auctioneers LLC, 29 F.4th 118, 124
(2d Cir. 2022) (“[A]ny interpretation that has the effect of rendering at least one
clause . . . meaningless is not preferred and will be avoided if possible.” (alteration
adopted and internal quotation marks omitted)).
Equally unavailing is Delshah’s argument that the lease’s Permitted Uses
provision defines Free People’s business as “general retail use,” such that Free
People’s continued use of the premises for storing inventory, fulfilling online sales,
and advertising through signage meant that it never lost “the ability to operate its
business.” Delshah Br. at 30 (internal quotation marks omitted). Nothing in the
Permitted Uses provision purports to define Free People’s “business” for purposes

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of determining whether a taking occurred. To the contrary, the Permitted Uses
provision merely specifies the ways in which Free People could use the premises
without itself breaching the lease. See App’x at 791, 796. Nor does the takings
clause explicitly cross-reference the Permitted Uses provision, as other provisions
of the lease do. See, e.g., id. at 796, 822. The plain language of the takings
provision, in contrast, excuses Free People’s obligation to pay rent when it is
unable to “operate its business,” id. at 816 (emphasis added) – that is, Free People’s
actual business.
We agree with Free People that the district court’s entry of summary
judgment in Delshah’s favor on its contract claim must be reversed. The
undisputed portions of the record clarify that, with respect to the leased premises,
Free People’s business consisted of operating a traditional retail clothing store
offering in-person sales, from which Free People also fulfilled a portion of its
online orders. By virtue of New York’s emergency COVID-19 orders, however,
Free People’s store was closed to the public until June 22, 2020, and no Free People
employees were allowed to enter the premises from March 22 to April 9. To be
sure, beginning on April 9, one employee was allowed to enter the store at a time
to fulfill online orders. And from June 8 until June 22, Free People could also offer

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curbside pickup outside the store for orders placed remotely. But under the
takings provision, an operation limited to fulfilling remote orders is not the
“business” that Free People had previously operated on the premises, which
consisted principally of a brick-and-mortar clothing store offering a traditional, in-
person retail experience “in a well-trafficked and highly desirable neighborhood
in Manhattan.” Id. at 1318.
Because New York’s emergency orders prevented Free People from
operating “its business” on the premises between March 22 and June 22, 2020, the
lease excused Free People’s obligation to pay rent during that period. Free People
is therefore entitled to summary judgment on Delshah’s claim that Free People
breached the lease when it failed to pay rent.
B. Free People’s Breach-of-Contract Counterclaim
Free People also challenges the district court’s denial of summary judgment
on its counterclaim for breach of contract. That counterclaim alleges that Delshah
wrongfully terminated the lease based on Free People’s nonpayment of rent

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between March and June 2020 given that, in Free People’s view, the lease’s takings
provision excused its obligation to pay rent during that period.4
As an initial matter, the district court held that this counterclaim was barred
because Free People failed to comply with the lease’s notice-and-cure provision.
That provision states that “[i]t shall constitute a default hereunder if, from and
after the date of this Lease, Landlord fails to keep, observe or perform any of its
obligations to be kept, observed[,] or performed under this Lease within thirty (30)
days after Landlord’s receipt of notice of nonperformance from Tenant.” Id.
at 820. The provision goes on to say that “[i]f Landlord fails to cure [its] default
within the applicable time period, then Tenant may elect, in addition to any and
all other rights and remedies available to Tenant hereunder or at law or in equity,
to cure such default on behalf of Landlord.” Id. at 821. The district court
construed this provision as a procedural condition precedent to Free People’s
filing of a breach-of-contract claim for wrongful termination of the lease. We
disagree.
4 Free People’s operative complaint also alleges that Delshah breached the lease in other
ways, including by misapplying a partial rent payment that Free People made in
May 2020. Because Free People does not meaningfully address these alternative theories
of breach in its briefing on appeal, we consider only its claim that Delshah wrongfully
terminated the lease.

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By its terms, the notice-and-cure provision applies only to a landlord’s
failure to “keep, observe[,] or perform any of its obligations” under the lease. Id.
at 820. Delshah’s termination of the lease, however, was not merely the
nonperformance of an obligation, but rather the election of a contractual remedy
pursuant to the lease. Treating such a termination as subject to the lease’s notice-
and-cure provision would produce absurd consequences, requiring the tenant to
provide the landlord with formal notice of Delshah’s own termination of the lease
and, nonsensically, permitting the tenant to (somehow) “cure” the termination of
the lease on behalf of the landlord. The parties cannot possibly have intended
such an incoherent interaction between the notice-and-cure provision and
Delshah’s termination remedy. We therefore conclude that Free People’s failure
to provide Delshah with a formal notice of default and an opportunity to cure does
not prevent Free People from asserting a counterclaim based on Delshah’s alleged
wrongful termination of the lease. See Macy’s Inc. v. Martha Stewart Living
Omnimedia, Inc., 6 N.Y.S.3d 7, 11 (1st Dep’t 2015) (“It is well settled that a contract
should not be interpreted to produce an absurd result, one that is commercially
unreasonable, or one that is contrary to the intent of the parties.” (internal
quotation marks omitted)).

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The district court also rejected Free People’s counterclaim on the ground
that the takings provision did not apply and that Delshah therefore properly
terminated the lease. Because we conclude that the takings provision did excuse
Free People’s obligation to pay rent during the relevant period, it follows that Free
People is also entitled to summary judgment on its claim that Delshah improperly
terminated the lease.
C. Free People’s Unjust-Enrichment Counterclaim
Finally, Free People argues that the district court erred by dismissing Free
People’s counterclaim for unjust enrichment. That claim relates to two payments
Free People made to Delshah in August and September 2020, which Delshah
refused to return. Free People asserts that the district court incorrectly held that
its unjust-enrichment claim duplicated its breach-of-contract claim. We agree.
An unjust-enrichment claim under New York law requires the plaintiff to
show “that (1) the other party was enriched, (2) at that party’s expense, and (3) that
it is against equity and good conscience to permit the other party to retain what is
sought to be recovered.” Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182
(2011) (alteration adopted and internal quotation marks omitted). Quasi-contract
claims like unjust enrichment, however, “are ordinarily precluded if a valid and

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enforceable written contract . . . governs the relevant subject matter.” Goldberg v.
Pace Univ., 88 F.4th 204, 214 (2d Cir. 2023) (alteration adopted and internal
quotation marks omitted); see also Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70
N.Y.2d 382, 388 (1987) (“The existence of a valid and enforceable written contract
governing a particular subject matter ordinarily precludes recovery in quasi
contract for events arising out of the same subject matter.”). Accordingly, “[a]n
unjust[-]enrichment claim is not available where it simply duplicates, or replaces,
a conventional contract or tort claim.” Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777,
790 (2012).
Here, the district court held that section 22(c) of the lease – which provides
that “in the event of any termination of this Lease . . . by reason of an Event of
Default [by Free People],” Free People would “pay the Rent that would be payable
under this Lease” as liquidated damages, App’x at 819 – authorized Delshah to
treat Free People’s August and September 2020 payments as post-termination rent
and that Free People thus had no claim for unjust enrichment. But that reasoning
presumes that Free People, not Delshah, breached the lease. Because we conclude
the opposite, the court’s decision concerning the unjust-enrichment claim cannot

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stand.5 Moreover, Free People’s unjust-enrichment claim is premised on a theory
that it essentially overpaid on the lease by making two payments in August and
September 2020 that it did not actually owe, since Delshah had wrongfully
terminated the lease months earlier. Neither Delshah nor the district court
identified any provision of the contract governing Delshah’s obligations with
respect to reimbursement of such overpayments. Indeed, the mistaken payment
of an amount not owed under a contract between the parties typically “presents
one of the core cases of restitution, whether liability is explained by reference to
the transferee’s unjustified enrichment or to the transferor’s unintended
dispossession.” Restatement (Third) of Restitution and Unjust Enrichment § 6
cmt. a (2011); see id. illus. 7 (“Debtor pays a debt to Creditor. Forgetting the earlier
payment, Debtor pays Creditor a second time. Debtor has a claim in restitution
to recover the overpayment.”). Thus, we are not persuaded that Free People’s
unjust-enrichment claim is necessarily precluded by the lease.
5 Even if we were not inclined to vacate the district court’s grant of summary judgment
in Delshah’s favor, the district court’s reliance on section 22(c) was improper. That
section would have provided Delshah with an exclusive remedy in the form of liquidated
damages only if Delshah had not pursued damages under section 22(d). But Delshah
did pursue damages under section 22(d), so section 22(c) is inapplicable, and Delshah
agrees. See Delshah Br. at 55 (“Section 22(c) should have been irrelevant to the District
Court’s analysis because, as per the plain language of the Delshah Lease, the remedy
outlined in Section 22(c) could not be utilized in conjunction with Section 22(d).”).

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Because the district court concluded, as a matter of law, that Free People’s
unjust-enrichment claim was duplicative of its breach-of-contract claim, the court
did not consider Judge Cave’s determination that “genuine issues of material fact
in dispute would preclude summary judgment in Free People’s favor” on that
claim. App’x at 43–44. Nor does the parties’ briefing substantively address that
issue. Rather than take up that unbriefed question on appeal, we remand for the
district court to consider it in the first instance. See New York ex rel. James v.
Niagara-Wheatfield Cent. Sch. Dist., 119 F.4th 270, 284 (2d Cir. 2024) (observing that
our “preferred” and “usual” practice “is to allow the district court to address
arguments in the first instance” (alteration adopted and internal quotation marks
omitted)).6
IV. C ONCLUSION
For these reasons, we REVERSE the district court’s grant of summary
judgment to Delshah on its claim for breach of contract, as well as its denial of
summary judgment to Free People on its counterclaim for breach of contract; we
VACATE the district court’s judgment with respect to Free People’s counterclaim
6 We likewise express no view on the calculation of damages for Free People’s breach-of-
contract counterclaim and the calculation of damages, if any, for Free People’s revived
unjust-enrichment claim, which shall be resolved in the first instance by the district court
on remand.

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for unjust enrichment; we DISMISS Delshah’s cross-appeal as moot; and we
REMAND this case for further proceedings.

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