Not everyone is pardoning Google Inc.'s dust as the Merchandise Mart makes renovations for the arrival of the Internet giant's new mobile solutions unit next year.

Allscripts Healthcare Solutions, a nine-year tenant of the River North edifice, is suing its landlord, saying it violated a lease with the health IT company when it started making repairs and improvements to five floors just below Allscripts' offices on the 19th and 20th floors.

“As a result of the noise and vibrations generated by the construction equipment, Allscripts' employees have been unable to concentrate or to conduct regular business activities,” according to the suit, filed Wednesday in Cook County Circuit Court. “Additionally, the constant noise and vibrations generated by the construction equipment has negatively impacted employees' physical and mental well-being, making them anxious, impatient and irritable.”

The owner of the Merchandise Mart, New York-based Vornado Realty Trust, is preparing the space for Google's Motorola Mobility unit, which agreed last year to lease 572,000 square feet in the building and move about 2,300 employees there from Libertyville. It was the largest downtown office lease since 2005.

Allscripts says it has written a cease-and-desist letter to the Mart, asking that it stop using “nail and screw guns, pneumatic hammers and tools, sledge hammers, power drills and other industrial equipment on the 15th through 19th floors during ordinary business hours,” but to no avail.

The suit asks for a judge to order the Mart, Chicago's largest office building in terms of square feet, to stop performing non-emergency repairs on Google's floors during working hours.

An Allscripts spokeswoman declined to comment on the suit, saying the company doesn't speak about pending litigation. Spokesmen for Merchandise Mart and Google also declined to comment.

Commercial leasing lawyer Dov Pinchot, a partner at Freeborn & Peters LLP who is not involved in the case, describes it as “very sticky,” because such scenarios usually are not outlined in a lease.

“Generally speaking, leases don't address the specific issue of noise, construction noise especially,” said Mr. Pinchot, co-head of the Chicago-based firm's Real Estate and Land Use Practice Group. “There are clauses set up so a tenant isn't creating any nuisances like odors or noise that will interfere with other tenants in the building, but very rarely do you see that language reciprocated.”

One clause of the lease, although it doesn't directly mention noise, contains language specific enough that it could aid Allscripts' case, said Mr. Pinchot, referring to lease excerpts in the complaint. The clause says the landlord can conduct construction work “during ordinary business hours, so long as (except in the case of emergency) the performance of such work during ordinary business hours does not materially interfere with” Allscripts' access to the property or its ability to conduct business.

Disputes can be resolved by changing the hours the heaviest work is done. The more extreme option is to abandon the space, Mr. Pinchot said.

“The issue you run into with noise is, you haven't lost possession of the premises,” Mr. Pinchot said. “It's not a real eviction type of situation. Tenants will claim constructive eviction. Even though they haven't literally been thrown out of the premises, they effectively can't use it. To trigger that, you have to actually leave the premises. If it's your headquarters or space you need, that isn't easy to do.”

Vornado is giving Mountain View, Calif.-based Google $55.8 million to cover the cost of building out its new Mart space. Google will be the largest tenant in the 4.2 million-square-foot building.



Allscripts sues Merchandise Mart over Google project originally appeared on Crain's Chicago Business.