1100 METROPLEX ASSOCIATES, L.L.C., Plaintiff v. B.S.E., INC.,

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5341-03T25341-03T2

1100 METROPLEX ASSOCIATES,

L.L.C.,

Plaintiff,

v.

B.S.E., INC., d/b/a Q-CIM

DEVELOPMENT LABORATORIES,

Defendant.

_________________________________

1100 METROPLEX ASSOCIATES,

L.L.C.,

Plaintiff/Third-Party

Defendant,

v.

FRANK FAMA, WAYNE WASYLYK,

THOMAS ROWLAND, and B.S.E.,

INC.,

Defendants,

and

Q-CIM, INC.,

Defendant/Third-Party

Plaintiff,

v.

GARY STERN, ISAAC STERN,

ROBERT LICHTSCHEIN, MARTHA

STERN, and TERRY LICHTSCHEIN,

Third-Party Defendants.

_________________________________

Q-CIM, INC.,

Plaintiff-Appellant/

Cross-Respondent,

v.

1100 METROPLEX ASSOCIATES,

L.L.C.,

Defendant,

and

CONTINENTAL CASUALTY COMPANY,

Defendant-Respondent/

Cross-Appellant,

and

GALE & WENTWORTH CONSTRUCTION

CO.,

Defendant/Third-Party

Plaintiff-Respondent,

and

GENERAL ACCIDENT INSURANCE

COMPANY/CGU,

Third-Party Defendant,

and

CHUBB INSURANCE COMPANY,

Intervenor.

______________________________

GALE & WENTWORTH CONSTRUCTION

CO.,

Plaintiff,

v.

FORTUNE INTERIOR DISMANTLING,

CORP.,

Defendant.

____________________________________________________________

 

Argued November 30, 2005 - Decided August 16, 2006

Before Judges Wecker, Fuentes and Graves.

On appeal from the Superior Court of New Jersey,

Law Division, Middlesex County, L-8693-97.

Daniel R. Guadalupe argued the cause for

appellant Q-CIM, Inc. (Norris, McLaughlin &

Marcus, attorneys; Mr. Guadalupe, on the brief).

David M. Kohane argued the cause for respondent/

cross-appellant Continental Casualty Company

(Cole, Schotz, Meisel, Forman & Leonard,

attorneys; Mr. Kohane, of counsel; Mr. Kohane,

Wendy F. Klein, and Christopher Massaro, on the

brief).

Patrick S. Espey argued the cause for respondent

Gale & Wentworth Construction Co. (Robinson,

Burns & McCarthy, attorneys; Patrick A. Robinson,

of counsel; Mr. Espey, on the brief).

PER CURIAM

Q-CIM, Inc. (Q-CIM), formerly known as B.S.E., Inc., d/b/a Q-CIM Development Laboratories, appeals from a summary judgment order dismissing its tortious interference claims against Continental Casualty Company (CNA). In its cross-claim, CNA appeals from an order finding that "Q-CIM possessed a valid contractual right to long-term occupancy of its third-floor space without any obligation to relocate at its premises." After reviewing the record in light of the applicable law, we reverse both orders, and remand for further proceedings consistent with this opinion.

Q-CIM was a small company that created and developed "enterprise" software. Frank Fama was Q-CIM's Vice-President of Operations from 1996 through 1998, before he became President. Q-CIM's other principals were Wayne Wasylyk and Thomas Roland. In early June 1996, a fire destroyed the offices that Q-CIM had been leasing in another building, and Q-CIM entered into a short-term lease with 1100 Metroplex Associates, L.L.C. (Metroplex). Metroplex owned a three-story office building in South Brunswick, with approximately 176,000 square feet of rentable space.

The short-term lease between Q-CIM and Metroplex required Q-CIM to pay $8,000 per month rent for a third floor suite comprising approximately 6,000 square feet. Q-CIM preferred the third floor because it considered the location to be more prestigious and it wanted to avoid a first floor location "close to the traffic" the building would generate when fully occupied. The short-term lease covered the period from July 20, 1996, through November 1, 1996.

Metroplex and Q-CIM also executed a letter of intent (the letter) on July 20, 1996. It recited that the parties had "come to agreement as to the essential terms and conditions of the Lease," but that Metroplex did not believe that a formal lease could be drafted and executed before Q-CIM would need "to take possession of the Premises as a month-to-month Tenant on an emergent basis." The letter's stated purpose was to "memorialize the essential terms and conditions of the Lease, which the Parties agree will be drafted and executed within not less than thirty (30) calendar days . . . ." The letter also called for an initial security deposit of $32,000, which was to be held in escrow "until such time as a fully executed lease is exchanged." This sum was paid by Q-CIM on November 18, 1996.

The letter signed by Q-CIM and Metroplex contained the following provisions:

3. The "Premises" to be leased constitutes approximately 6,000 sq. ft., subject to actual measurement, situated at Suite 1, 3rd Floor, 1100 Cornwall Road, Monmouth Junction (South Brunswick Township), New Jersey 08852, as more particularly shown on the floor plan attached as Schedule A hereto and made a part hereof.

4. The Term of the Lease will be ten (10) years, subject to Paragraph 8 herein.

5. The Rent shall be $14.85 per sq. ft. for the first five years of the Lease, and $15.85 per sq. ft. for the second five years of the Lease. Said sums shall be inclusive of all heating, ventilation, and air conditioning (HVAC) but shall not include tenant electric which tenant shall pay separately. It is agreed that tenant fit-up and built-out costs shall be borne directly by Tenant, provided that Landlord shall erect, at Landlord's expense, demising walls and common area corridors to the restrooms and elevators.

. . . .

8. Upon written notice to Landlord not later than six months prior to the end of the initial five-year period, Tenant at its discretion shall have the option to either: (a) continue the Lease for the second five-years, or (b) terminate the Lease by producing a qualified new tenant, or (c) terminate the lease, subject to the Landlord's duty to mitigate damages by seeking a new tenant, provided that even if a new tenant is not then available, the maximum liquidated damages paid to Landlord for breaking the Lease shall be the forfeiture of the aforementioned security deposit of four months rent.

. . . .

12. It is agreed that the basic terms of the Lease, whether or not referenced in this Letter of Intent, shall be on commercially reasonable terms generally consistent with leases for office space in central New Jersey.

According to Fama, Q-CIM got "a great deal" from Metroplex because the building was "essentially vacant during a downturn in the commercial real estate market," and Metroplex was in bankruptcy proceedings.

On November 4, 1996, Metroplex confirmed in writing that its long-term lease with Q-CIM would have "the same terms and conditions given to FDIC when they occupied 3/4 of the building . . . ." Metroplex also noted that it had allowed Q-CIM to use its building manager "as construction manager for their build-out," and it had provided Q-CIM with "materials available in the building at no charge," because Q-CIM was "the first to move into the building after FDIC vacated."

On November 27, 1996, Metroplex had Q-CIM execute an estoppel certificate stating that Q-CIM and Metroplex had signed a lease dated November 1, 1996, which was "in full force and effect." According to the estoppel certificate, Q-CIM's lease expired on October 31, 2001, but Q-CIM had "a five (5) year renewal option for the same space . . . ."

Although Q-CIM and Metroplex never executed a long-term lease, Fama claimed that Q-CIM spent $75 per square foot to outfit its new space at Metroplex because it was to be their permanent headquarters. According to Q-CIM's president at the time, Wayne Wasylyk, Q-CIM was not going to "pour a small fortune into a building to make it a showplace, if we didn't think we had a right to be there."

In November 1996, Robert Morford, of the realty firm Garibaldi Group, contacted Isaac Stern, a principal in Metroplex, on behalf of his client CNA, which was interested in leasing space in the Metroplex building. CNA's property manager, Margaret Steck, visited the Metroplex building that same month. She recalled that one of the principals in Metroplex, either Gary Stern or Isaac Stern, told her "quite early in the process" that Q-CIM could be relocated within the building.

On December 2, 1996, Isaac Stern wrote to Peter Blanchard of the Garibaldi Group to propose lease terms to CNA. The rent was to be $17.65 per square foot annually "in as-is condition," or $18.95 "with a $10.00 work letter". The proposal listed the "total available space" as 174,231 square feet; it did not refer to Q-CIM by name or as an existing tenant, but it indicated that the third floor had approximately 8,000 less square feet available than the second floor did, and the floor plans depicted an area on the third floor with the legend "Leased." In a memo dated January 3, 1997, Steck was advised that Q-CIM software was an "existing tenant" with a right to occupy until 2001, and Steck was also advised that Q-CIM had "one renewal option."

On January 16, 1997, Blanchard responded to Isaac Stern's proposal by stating that CNA would need 125,000 to 140,000 square feet, and that "the relocation of Q-CIM will be required in order to provide CNA with the most efficient and desirable space configuration." Mark Kruse, CNA's national director of design and project management, explained that CNA wanted to use Q-CIM's space on the third floor so that each of its business units could be housed together rather than split between floors. Having all the business units on the second and third floors would let CNA devote the first floor to a lunch room, training center, and other similar spaces.

On February 10, 1997, Thaddeus Maciag, Q-CIM's attorney, wrote to Gary Stern of Metroplex about his repeated oral reassurance "that you as Landlord would pay 'whatever it costs' to reimburse Q-CIM for its expenses of moving plus the build-out cost, and to compensate Q-CIM for the diminished value of the new space you propose to move them into" on the first floor of Metroplex's building. Maciag listed several categories of expenses relating to the build-out of the third floor, which totaled $426,215.60. He estimated the first floor "[i]ncreased build-out cost" at $150,000, plus $8,500 for permits, fees, and legal costs. The total of all those items was $584,715.58.

Fama of Q-CIM certified that Metroplex assured him it would pay "whatever it cost" to create space on the first floor equivalent to Q-CIM's premises and move Q-CIM into it. Because Q-CIM considered the first floor less desirable, it also sought a rent reduction of $4 per square foot. Fama said that Metroplex rejected those terms and "everything became adversarial," causing Metroplex to refuse to conclude negotiations on a long-term lease and to pursue eviction instead.

According to Isaac Stern, Metroplex agreed to move Q-CIM to the first floor at its own expense, but it did not agree to the reimbursement of other costs that Q-CIM was attributing to the proposed move. At his deposition, Isaac Stern testified that when Fama "found out that CNA was going to be the tenant to take over his space and that they would be occupying a major portion of the building, he became very difficult." Isaac Stern testified that Fama "was paying rent of $15.85 a foot," and he "wanted to pay something like $8," but Metroplex was only willing to go as low as $11 per square foot.

On February 27, 1997, another company agreed to take the premises that CNA would be vacating to move into the Metroplex building. CNA was required to vacate by July 31, 1997, in order to avoid financial penalties of nearly $400,000.

On March 14, 1997, CNA's Steck sent Isaac Stern a letter concerning certain lease terms. It stated that lease execution was anticipated by April 10, 1997, but even if the parties failed to enter into a lease, CNA agreed to reimburse Metroplex for the cost of relocating Q-CIM, "which is $74,230.00 plus an additional $74,230.00, totaling a full reimbursement to the Landlord for this relocation of $148,460.00."

CNA planned to begin occupancy in mid-July 1997. Steck certified that Isaac Stern had repeatedly promised that Metroplex would relocate Q-CIM in time for CNA's occupancy. However, Isaac Stern denied telling CNA that Q-CIM would be out of the building before CNA took occupancy. At his deposition, Isaac Stern testified that Metroplex advised CNA that Q-CIM was a month-to-month tenant with a letter of intent, in order to let CNA "know there was no guarantee as to when they would get out of the space."

On April 14, 1997, CNA entered into a construction-management agreement with Gale & Wentworth Construction Co. (G & W). The agreement did not specifically address how the construction work for CNA might affect Q-CIM.

Richard Kaplan, an attorney representing Metroplex, testified at his deposition that he sent Q-CIM's attorney Maciag a draft long-term lease on April 18, 1997. Maciag responded on April 27, 1997, with a twenty-five page letter. In his letter, Maciag referred to the "unanimous agreement by all of the parties" that Q-CIM's move to the first floor "will not cost Q-CIM any money or unreimbursed lost time," and that "the move, buildout, contracts/lease agreements, and work done for Q-CIM and CNA . . . [cannot] interfere with Q-CIM's business," given that Q-CIM's annual "slow time" of November and December had already passed. Maciag also represented that the parties had agreed to give Q-CIM five days notice before any computer or power downtime, plus the right to approve "move and related buildout time schedules." Maciag emphasized that Q-CIM wanted to be made whole for its relocation to a part of the building that was less desirable and more susceptible to disruption:

Mr. Fama asked me to remind all, and this is to be included in any agreements, of the fact that this move to the first floor is not Q-CIM's idea, is not Q-CIM's preference, is not to Q-CIM's benefit, and deprives Q-CIM of privacy, scenic views from all areas of its existing space, lacks private balconies totaling 1,500 sq. ft. overlooking park-like settings, and a private pretigious 40-plus feet of hallway, and interfering with Q-CIM's business, etc. --- rather, this move is solely the Landlord's idea, is solely the Landlord's preference, is solely for the Landlord's benefit, and is solely based on the Landlord's time needs without any consideration to Q-CIM's business needs or timetable.

Also we note that Q-CIM paid and incurred 100% of its first-class buildout on the 3rd floor which was completed in December 1996, and the Landlord is only replacing what Q-CIM has paid for. Mr. Fama wishes to strongly stress that Q-CIM [has gone] beyond the meaning of the word cooperate in cooperating and working with the Landlord in this move, and is solely trying to accommodate your client. Q-CIM also wants Landlord to fully understand that any duration of any power interruption of any kind could cause Q-CIM material interference with their business. We also wish to stress that Q-CIM is not gaining a windfall here (as Landlord implied in one of the meetings), or even to seek damages for the gross inconvenience and interfering with Q-CIM's business -- rather, Q-CIM is simply seeking to be made whole and to break even on the monetary cost to Q-CIM for the move. Q-CIM does recognize that there have been favors and consideration on both sides, and Mr. Fama hopes that the parties can continue to have a good working relationship, but notes that while Q-CIM is not seeking damages for the inconvenience and the selling of their rights to the 3rd Floor, for the move from the 3rd to the lst floor, Q-CIM reserves its right to seek said damages if it is left with no choice than to leave the building altogether, including after Q-CIM moves for Landlord's benefit.

Maciag also pressed for execution of a long-term lease and for "full disclosure of Landlord's timetables for the buildout and move of Q-CIM."

On May 7, 1997, CNA's lease with Metroplex was finalized. The term was for ten years, with a base annual rent of $2,802,401.80, or $18.95 per square foot. CNA was to begin paying rent totals on August 1, 1997. CNA occupied a total of 147,884 square feet: 58,234 square feet on the third floor, 61,640 square feet on the second floor, and 28,010 square feet on the first floor. Plans showed CNA occupying the entire second and third floors and most of the first floor, with the remaining parts of the first floor unlabeled.

Metroplex was to deliver the premises vacant "and free of rights of occupants other than Q-CIM." The lease anticipated the relocation of Q-CIM to the first floor, and in paragraph 2.7, Metroplex agreed to "use diligent and continuous efforts to cause Q-CIM to vacate the Q-CIM space as quickly as practicable, whether by agreement or by appropriate court proceedings."

The lease between Metroplex and CNA dated May 7, 1997, contained the following provisions:

2.3 Immediately following complete execution and delivery of [this] Lease, Landlord shall use its best efforts to obtain from the existing tenant of a portion of the third floor of the building, B.S.E., Inc. d/b/a Q-CIM Development Laboratories, Inc. ("Q-CIM") Q-CIM's agreement to vacate Q-CIM's approximately 6,300 square feet of space on the third floor of the building (the "Q-CIM Space") as soon as Landlord is able to provide available space for Q-CIM on the first floor of the building but in no event later than July 1, 1997. In the event that Landlord is unable to obtain such written agreement from Q-CIM on or before May 30, 1997, or in the event that Landlord obtains such agreement from Q-CIM but Q-CIM does not vacate the Q-CIM Space, Landlord agrees to take immediate legal action against Q-CIM to either have Q-CIM evicted from the Q-CIM Space or to obtain an appropriate order from a court of competent jurisdiction requiring Q-CIM to relocate from the Q-CIM Space to the first floor. In addition, unless Landlord obtains such written agreement from Q-CIM prior to May 30, 1997, then on or before such date Landlord shall serve written notice on Q-CIM of termination of Q-CIM's month to month tenancy as of June 30, 1997, such notice to be in conformity with New Jersey landlord/tenant law requirements for termination of a month to month tenancy.

2.5 Immediately following complete execution and delivery of this Lease, Landlord shall afford Tenant access to the third floor (excluding the Q-CIM Space), second floor and first floor of the Premises to commence fitting up of the Premises, along with an additional area on the first floor of the building approximately equal in size to the Q-CIM space for temporary use by Tenant until the entire third floor of the Premises is ready for occupancy by Tenant (the "Temporary Space").

2.6 The Rent Commencement Date hereunder for the entire Premises, excluding the Q-CIM Space, shall be August 1, 1997, irrespective of the date of first occupancy thereof by Tenant. The Rent Commencement Date with respect to the Q-CIM Space shall be thirty (30) days after Q-CIM vacates the Q-CIM Space, but not before August 1, 1997.

In paragraph 2.9 of the lease, CNA agreed to pay Metroplex the sum of $74,230 within ten days after Q-CIM had been removed from the premises: "Tenant shall pay to Landlord, within 10 business days following the date that Q-CIM has been removed from the Premises, the sum of $74,230.00 to partially defray Landlord's costs in moving the [sic] Q-CIM."

In a letter dated May 29, 1997, Metroplex demanded that Q-CIM vacate the space it was renting from Metroplex:

Your company currently occupies suite 1 on the third floor of the building. A written lease for said space expired November 1996, and you have occupied the space since that date based on an oral month to month tenancy. To date, the parties have failed to reach agreement on the terms of a new lease. This letter is intended to notify you that the landlord does not wish to renew the lease for another month. Accordingly, your tenancy will expire effective as of June 30, 1997.

On July 10, 1997, Metroplex began an eviction action, and, on the same day, it filed a Law Division action against Q-CIM and its principals alleging tortious interference with prospective economic advantage. Q-CIM answered with a denial and a counterclaim for a declaration of a long-term right to occupy, an injunction against eviction, and damages. Q-CIM also filed a separate action against Metroplex, CNA, and G & W seeking a declaration that it held a valid long-term lease, and an injunction against eviction or interference with possession. The three matters were consolidated on March 6, 1998. In its second amended complaint, Q-CIM added a claim of tortious interference against CNA and G & W.

On July 30, 1998, Metroplex and Q-CIM entered into a settlement which covered all claims between them and their principals. Metroplex agreed to pay Q-CIM $125,000 and to pay an additional $250,000 into escrow for release to Q-CIM when it vacated the premises. Q-CIM could remain through December 31, 1998, at no expense other than $600 per month for common-area maintenance charges. For January and February 1999, Q-CIM could remain at a rent of $11,000 per month, but it had to vacate by March 1, 1999, or Metroplex would be entitled to pursue eviction. Q-CIM vacated in January 1999. The settlement agreement also provided as follows:

In view of the within settlement, there has been no judicial determination either way as to whether or not there ever existed any lease between Metroplex Associates and Q-CIM for Q-CIM's occupancy of space at Metroplex Center at any time. It is expressly understood and agreed by the Parties that, notwithstanding that fact, Q-CIM has as of August 1, 1998 no leasehold interest or right to occupy space at Metroplex Center pursuant to any lease, but from August 1, 1998 forward, shall only be permitted to occupy such space pursuant to the terms of this Agreement and the Use and Occupancy Agreement, which shall be consistent with the terms of this Agreement and shall be executed by the parties within seven (7) days of the date hereof, in the form attached hereto as Exhibit A. Notwithstanding that fact, this shall not give rise to an inference as to the existence or non-existence of a lease between Metroplex Associates and Q-CIM at any time.

On December 4, 1998, Q-CIM sought summary judgment in connection with its claim that it possessed a valid contractual right to long-term occupancy of its third-floor space without any obligation to relocate to the first floor. During oral argument on April 23, 1999, the trial court tentatively ruled that Q-CIM possessed a valid contractual right to long-term occupancy "by virtue of the written documents" and by "virtue of the improvements placed in the building, extensive expensive improvements with the knowledge of the landlord." In an order dated June 25, 1999, the court granted Q-CIM's motion, and it dismissed CNA's counterclaim against Q-CIM. In its counterclaim, CNA alleged that Q-CIM wrongfully occupied the third-floor space because it had failed to comply with the demand to vacate by June 30, 1997.

In its cross-appeal, CNA argues that the trial court erred in finding that Q-CIM possessed a valid contractual right to a long-term occupancy. CNA contends that the facts regarding Q-CIM's status were disputed and critical discovery had not been completed prior to the trial court's decision.

As noted by CNA, the letter of intent between Metroplex and Q-CIM stated that their long-term lease would contain "commercially reasonable terms generally consistent with leases for office space in central New Jersey." At his deposition, Richard Kaplan, an attorney representing Metroplex, testified that a commercial lease for a "relatively small space in a relatively large building, which is currently vacant or mostly vacant," customarily has a relocation clause because the owner of the building wants to be able to accommodate a large tenant that may need contiguous space.

This testimony by Metroplex's attorney, which suggested that Q-CIM was not entitled to a valid long-term right to occupy its third-floor space, was disputed by Fama of Q-CIM who certified as follows:

I am troubled by CNA's misleading reliance on the testimony of the landlord's lawyer, Richard Kaplan, who said that all leases for a small tenant like us would have allowed the landlord the ability to relocate the tenant. Mr. Kaplan was not involved at all in the negotiations between Q-CIM and landlord (Gary Stern), and Mr. Kaplan himself had submitted three (3) proposed leases to Q-CIM in the following year of Q-CIM's occupancy -- none of which had a relocation clause. Therefore, Mr. Kaplan's testimony was self-serving and slanted to help CNA.

Fama's certification, however, only highlights the need to complete discovery. According to CNA, the deposition of Gary Stern, who negotiated the letter of intent with Fama "had been started but had not been completed," and "CNA's counsel had not had the opportunity to ask him a single question." Moreover, according to CNA, the "depositions of Isaac Stern and Frank Fama, which CNA had noticed, had not even commenced." Under these circumstances, it was error for the trial court to find as a matter of law "that Q-CIM possessed a valid contractual right to long-term occupancy of its third-floor space without any obligation to relocate at its premises." Because CNA was not a party to the negotiations between Q-CIM and Metroplex, it should have been given an opportunity to depose the individuals involved in those negotiations. Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988) ("When critical facts are peculiarly within the moving party's knowledge, it is especially inappropriate to grant summary judgment when discovery is incomplete." (internal quotation marks omitted)).

We are also satisfied that the trial court erred in granting summary judgment dismissing Q-CIM's tortious interference claims against CNA and G & W. To prove tortious interference with prospective economic advantage, a plaintiff must show "some protectable right," usually by demonstrating that it had sufficiently pursued a business opportunity to have "some 'reasonable expectation'" of securing it. Printing Mart-Morristown, Inc. v. Sharp Elecs. Corp., 116 N.J. 739, 751 (1989) (quoting Harris v. Perl, 41 N.J. 455, 462 (1964)). The plaintiff must also show that the interference was done "intentionally and with malice," which means "that the harm was inflicted intentionally and without justification or excuse." Ibid. (internal quotation marks omitted). In addition, plaintiff must show that "the interference caused the loss of the prospective gain," so that, in the absence of the interference, there would have been "'a reasonable probability that the victim of the interference would have received the anticipated economic benefits.'" Ibid. (quoting Leslie Blau Co. v. Alfieri, 157 N.J. Super. 173, 185-86 (App. Div.), certif. denied sub nom. Leslie Blau Co. v. Reitman, 77 N.J. 510 (1978)). Finally, plaintiff must show "that the injury caused damage." Id. at 752.

In his certification in opposition to the summary judgment motions filed by defendants CNA and G & W, Fama explained that the relationship between Q-CIM and Metroplex had been cordial until CNA insisted that Q-CIM either relocate to the first floor or be evicted. According to Fama, Q-CIM's business was "totally disrupted during CNA's efforts to drive us out of the third floor."

As a software development company, Q-CIM has always been extremely dependent on: (a) continuous, uninterrupted power supply (computer hardware is extremely sensitive to power outages and surges, and critical data can be lost or destroyed as a result of such problems); (b) continuous and uninterrupted phone and computer data lines to support its business and product development efforts on the internet and access to its computers by Q-CIM's outside developers, consultants and employees who were working and communicating with Q-CIM off-site; and (c) a dust-free, temperature-balanced environment (just like CNA wanted and demanded from GW that its data center be free of dust. Q-CIM also needed its hardware to operate free of dust and contamination which would ruin circuits, motherboards and storage devices).

. . . .

I have no words to describe how the demolition and ongoing construction by CNA and its contractor GW wreaked havoc on our daily operations at Q-CIM.

Since CNA and GW did not file plans with South Brunswick Township showing the presence of Q-CIM, we were pretty much at the mercy of CNA and GW. They proceeded with work as if we were not there, clearly to harass and annoy us so that we would give up our refusal to move out of the space for which we firmly believed we had a long term lease . . . .

. . . .

We suffered numerous unannounced power shutdowns which simply stopped our operations cold. Electrical, communications and data lines were cut, depriving us not only of power but of phone and internet communications-all vital to our work. We could not communicate with clients for long periods of time. Hardware and data storage were equally affected. The HVAC system was a total disaster. Many days in the Summer it stopped working altogether, and our employees lost their ability to produce work output that they were paid for. Sometimes it was extremely cold. The dust and noise, and sometimes vibrations, generated by the construction were constant and intolerable.

At one point, an electrical panel which was owned by Q-CIM (and which supplied power to Q-CIM) was dismantled and rearranged without any notice to us, and this caused great disruption to our operations.

My partner Tom [Roland] even caught some individuals yanking wires which were marked belonging to the Q-CIM space, and he directed them to stop. They never explained to him what they were doing. We concluded that the tugging on these lines was the reason we were losing data, including program code being distorted that was entering our commercial software packages under development by remote consultants. In other words, when remote consultants sent us program code over internet or dial-up phone line connections, the information sometimes was incomplete or missing causing us significant problems.

. . . .

To say that any specific instance was an act inspired by "ill will," such as that of an arsonist who seeks to burn a building would be ridiculous.

However, considering CNA's motive and intent to drive us out of the third floor, and considering: (a) the submission of plans to the town construction officials essentially hiding our presence; (b) the payment by CNA to the landlord to evict us; (c) the failure of CNA to give GW a delineation of where to stop relative to us; and (d) the total failure by GW to protect us from the shutdowns, noise, dust, lines cut, HVAC not working, blocked elevators and numerous incidents which took place collectively, one can honestly conclude that there was clearly a wrongful effort without justification on the part of CNA and GW to drive us out.

Q-CIM argues that while G & W was careful in setting up an uninterrupted power supply for CNA, it failed to do the same for Q-CIM even though G & W's contract with CNA "required that measures be taken to protect any tenants (like Q-CIM) adjacent to the construction." In addition, Q-CIM contends that G & W proceeded with construction "without any delineation of where to demolish or renovate relative to Q-CIM," and that a fair inference can be drawn from this that "CNA's and G & W's goal was to annoy and drive Q-CIM out of the building."

As noted by Q-CIM, CNA would have been subject to severe financial penalties if it had failed to relocate to the Metroplex building by July 31, 1997. Q-CIM argues that paragraph 2.9 of the lease between CNA and Metroplex confirms that CNA was willing to pay Metroplex the sum of $74,230 "to remove Q-CIM from the third floor one way or the other," because "CNA wanted the space, and Q-CIM's rights were expendable."

Like the trial court, we must view the facts in the light most favorable to Q-CIM, the non-moving party. R. 4:46-2(c). Summary judgment is only appropriate when the evidence is so "one-sided" that defendants must prevail as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Based on our review of the record, this is not such a case. We conclude that a reasonable jury could infer from the evidence, including the manner in which the construction work was performed in anticipation of CNA's occupancy of the Metroplex building, that there was an intentional, malicious effort on the part of CNA and G & W to force Q-CIM from its offices on the third-floor, so that CNA could occupy the space. We therefore reverse the summary judgment order dismissing Q-CIM's tortious interference claims against CNA and G & W.

The orders under review are reversed, and the matter is remanded for further proceedings consistent with this opinion.

 

Misspelled below as "Lichstein."

Misnamed below as "CNA Insurance Company."

Misnamed below as "Gale & Wentworth Construction Services, Inc."

According to Q-CIM's president, enterprise software "helps businesses manage and integrate many functions, such as sales, inventory, shipping product attributes, order fulfillment, supply chain management, and manufacturing needs."

The lease does not contain a paragraph numbered 2.4.

(continued)

(continued)

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A-5341-03T2

August 16, 2006