Eklecco Newco, LLC v Café Tu Tu Tango of Palisades, LLC

[*1] Eklecco Newco, LLC v Café Tu Tu Tango of Palisades, LLC 2008 NY Slip Op 50210(U) [18 Misc 3d 1126(A)] Decided on February 7, 2008 Supreme Court, Onondaga County Greenwood, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through February 11, 2008; it will not be published in the printed Official Reports.

Decided on February 7, 2008
Supreme Court, Onondaga County

Eklecco Newco, LLC, Plaintiff,

against

Café Tu Tu Tango of Palisades, LLC and Café Tu Tu Tango Orlando Joint Venture, Defendants.



2007-3439



APPEARANCES: J. MICHAEL NAUGHTON, ESQ., OF YOUNG, SOMMER, LLC

For Plaintiff

ROBERT A. BARRER, ESQ., OF HISCOCK & BARCLAY, LLP

For Defendants

Donald A. Greenwood, J.

The plaintiff has moved for summary judgment on its eight causes of action in its amended complaint concerning the breach of a shopping center lease between the plaintiff, as landlord, and defendant Café Tu Tu Tango of Palisades, LLC (hereinafter defendant tenant) regarding 8,696 square feet of space in the Palisades Shopping Center in the Town of Clarkson, New York. Defendant Café Tu Tu Tango Orlando Joint Venture (hereinafter defendant guarantor) executed a Guaranty of Lease wherein it agreed to guaranty the obligations of the tenant under the lease.

It is undisputed that both on May 29, 2007 and August 2, 2007 the plaintiff landlord sent the defendant tenant notices of default and that it failed to cure the default in the payment of the rent on both occasions. It is further undisputed that on August 11, 2007 the defendant tenant closed its restaurant and on August 15, 2007 the plaintiff landlord sent the defendant tenant a notice of lease termination and the lease was thereafter terminated. Nor is there a dispute that after the restaurant was closed the defendant tenant abandoned the premises without having paid any of the rent under the lease. [*2]

As the proponent of the summary judgment motion, the plaintiff is required to affirmatively demonstrate the merits of its cause of action and its entitlement to judgment as a matter of law. See, Loveless v. American Ref. Fuel Co. Of Niagara, LP, 289 AD2d 819 (4th Dept. 2002). The plaintiff has met this burden with respect to the eight causes of action, which are for declaratory judgments that the defendant tenant breached the lease and operating covenant contained therein and that plaintiff is therefore entitled to liquidated damages pursuant to the lease (first and second causes of action), judgment for past due rent, the net present value of future rent and attorney's fees against defendant tenant (third, fourth and fifth causes of action), as well as for past due rent, liquidated damages and attorney's fees as against the defendant guarantor (sixth, seventh and eighth causes of action). The plaintiff has met this burden through the affidavit of Elizabeth Macie, an employee of Pyramid Management Group, Inc., the company that manages the Palisades Shopping Center on behalf of the plaintiff landlord, who administered the subject lease. Plaintiff has likewise met its burden with respect to its motion for summary judgment dismissing the defendants' counterclaim, which alleges that plaintiff's agents made false promises and misrepresented material facts in order to induce the defendant tenant into entering the lease. Defendants claim that plaintiff's representatives fraudulently induced them into signing the lease for a less desirable space than the space which the defendant tenant wished to occupy, based upon representations that an unsightly lighting fixture located near the lease space would be removed and that designers employed by the landlord's managing agent would transform the less desirable location. The plaintiff has met its burden in this respect through its reliance on the express language of the lease, which contains a merger clause and specific disclaimer.[FN1] In addition, the plaintiff relies upon the language contained in the two written lease modification agreements executed between the parties, which contained a merger clause, a release and an estoppel.[FN2] Finally, the plaintiff relies on a Joint Check Agreement executed on March 6, 2007, two months after the defendant tenant opened for business, which also contains a merger clause, as well as release and an estoppel provision which bars any claims based upon misrepresentation.[FN3]

Inasmuch as the plaintiff has established its entitlement to summary judgment through the [*3]tender of admissible evidence, the burden shifts to the defendants as the non-moving party to raise an issue of fact. See, Hunt v. Kosterellis, 27 AD3d 1178 (4th Dept. 2006). Defendants, however, have failed to do so. The defendants have offered only an attorney's affidavit in response. However, a party opposing a summary judgment motion cannot rely solely on an attorney affidavit; the submission of an affidavit from the defendants' attorney who does not have personal knowledge of the facts is insufficient to refute a motion supported by the affidavit from plaintiff's representative, who possesses personal knowledge. See, McGowan v. Villa Maria College, 185 AD2d 674 (4th Dept. 1992); see also, Lyndaker v. Sherwin Williams, Inc., 140 AD2d 979 (4th Dept. 1988). Inasmuch as the defendants have failed to offer an affidavit from a party with personal knowledge, who alleges that the defendant tenant did not breach the subject lease by defaulting in its monthly obligation to pay rent, or that it did not abandon the premises, fails to raise an issue of fact as to both the tenant and guarantor's liability under the lease. Nor have the defendants met their burden with respect to the plaintiff's motion for summary judgment dismissing their counterclaim. Moreover, the release of merger clauses contained in the lease and subsequent modification documents constitute complete defenses to any alleged representation made prior to the signing of the lease. See, Bero Contracting & Development Corp. v. Vierhile, 19 AD3d 1160 (4th Dept. 2005). Likewise, the estoppel clause is a complete defense to a claim for fraudulent misrepresentation where, as here, the defendant executes an agreement indicating that the landlord has complied with all of its obligations under the lease. See, Nicholas A. Cutaia, Inc. v. Buyers Bazaar, Inc., 224 AD2d 952 (4th Dept. 1996).

The defendants' contention that the motion for summary judgment should be denied pursuant to CPLR §3212(f) is likewise unpersuasive. It is insufficient to oppose a summary judgment motion on the ground that discovery is not complete; the party opposing the motion has the burden of demonstrating that the discovery relates to material and relevant issues of fact that are in dispute. See, Gillinder v. Hemmes, 298 AD2d 493 (2d Dept. 2002). Mere belief that additional discovery may possibly reveal something helpful is insufficient to defeat a summary judgment motion. See, Preferred Capital, Inc. v. P.B.K., Inc., 309 AD2d 1168 (4th Dept. 2003). The defendants have failed to specify which facts supporting their position exist, nor is the sworn affidavit provided from the defendant tenant to substantiate any allegation of fraud; nor have the defendants identified why any facts are allegedly within the plaintiff's exclusive knowledge. See, Martinez v. Wegmans Food Markets, Inc., 270 AD2d 834 (4th Dept. 2000).

Plaintiff's counsel submit an order consistent with this Decision.

ENTER

Dated: February 7, 2008

Syracuse, New York

DONALD A. GREENWOOD

Supreme Court Justice Footnotes

Footnote 1: Paragraph 23.16 of the lease provides that "tenant acknowledges and agrees that neither landlord nor any representative of landlord nor any broker has made any representation to or an agreement with tenant relating to the Premises, this Lease or the Shopping Center which is not contained in the express terms of this Lease...Tenant hereby waives any and all claims or defenses by tenant against the enforcement of this Lease which are based upon allegations of representations, projections, estimates, understandings or agreements by landlord or landlord's representative that are not contained in the express terms of this Lease."

Footnote 2: See, Lease Modification Agreement No. 1, dated September 7, 2005, paragraphs 2-4, and Lease Modification Agreement No. 2, dated June 29, 2006, paragraph 2.

Footnote 3: The Joint Check Agreement at paragraphs 4-5 specifically provide, inter alia, "as a material inducement to landlord entering into this agreement tenant represents, warrants and certifies to landlord that as of the date hereof:...landlord is not in default in any respect in any of the terms, covenants and conditions of the lease and...tenant has not existing...counterclaims or defenses against landlord under the lease".