White Mtns. Specialty Underwriting, Inc. v Gera Danbury, LLC
Annotate this CaseDecided on December 14, 2011
Supreme Court, Suffolk County
White Mountains Specialty Underwriting, Inc., Plaintiff,
against
Gera Danbury, LLC, Defendant.
4506-11
FORCHELLI, CURTO, DEEGAN
Attys. For Plaintiff
333 Earle Ovington Blvd.
Uniondale, NY 11553
GRUNDFAST & MORRISON, ESQS
Attys. For Defendant
8 Manor Rd.
Smithtown, NY 11787
Thomas F. Whelan, J.
Upon the following papers numbered 1 to11read on this motionfor summary judgment; Notice of Motion/Order to Show Cause and supporting papers 1 - 3; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers4-6; Replying Affidavits and supporting papers7-9; Other10 (Statement of Facts); 11 (Memorandum); (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion (#001) by the defendant for summary judgment dismissing the plaintiff's complaint in this action to recover damages from the defendant by reason of its purported breach of lease is considered under CPLR 3212 and is granted.
In May of 2010, the defendant, as landlord, and the plaintiff, as tenant, entered into a written lease by which the plaintiff leased Suite 1 on the fourth floor of an office building situated in Danbury Connecticut. Paragraph 14 of said lease afforded the plaintiff, as tenant, the right to assign or sub-lease its leasehold subject to the defendant's consent and its right to recapture (see Lease ¶ 14[a];[c]). Paragraph 14(b) entitled "Standards for Consent" imposed various duties upon the tenant with respect to securing the landlord's consent to a proposed sublease or assignment to a non- affiliate or non-subsidiary of the plaintiff. The tenant's documentary submissions to the landlord regarding the required particulars of the proposed sublease and new tenant, including its banking, financial, credit, business history, and proposed uses, were required to be delivered not less than thirty days prior to the proposed start of the sublease. The landlord was then charged with the obligation of not unreasonably withholding its consent and with notifying the tenant of its consent or refusal within fifteen days after the landlord's receipt of all of the informational items which the tenant was required to provide to the landlord. In the event of a wrongful withholding of consent by the landlord, Paragraph 14(b) limited the recourse of the tenant to the remedy of "specific performance".
On November 22, 2010, Robert Kuehn, the Senior Vice President and General Counsel to the plaintiff, telephoned the defendant's managing agent and advised of the plaintiff's desire to sublease its office suite to an affiliate or subsidiary of the Navigators Group., Inc, a competitor of the plaintiff. Several days thereafter, the plaintiff again telephoned the defendant's property management agent. According to Kuehn, the agent "was still unable to provide me [plaintiff] with any information regarding what Defendant required for sublease approval". On or about December 1, 2010, Kuehn, finally contacted by telephone, Aaron Smiles, the plaintiff's Director of Operations and Development. Kuehn and Smiles spoke by telephone again on December 6, 2010. In that conversation, Smiles asked Kuehn for a contact person for the proposed new tenant. In response, Kuehn identified the contact person as "Joanne". Following that conversation, Kuehn e-mailed Navigator's associate counsel, Emily Minor, and advised her of the sum and substance of his conversation with Smiles. Kuehn further advised Minor that he was preparing the sublease and would forward it to her the following day.
On December 31, 2010, Kuehn contacted Minor and inquired whether she had heard from Smiles. She responded in the negative, in response to which, Kuehn advised that he would follow up with Smiles. On January 3, Smiles e-mailed Kuehn advising that he would contact Navigator. The following day Minor advised Kuehn that she would be out of the office for a "few weeks" and asked Kuehn to notify Smiles of that fact and to advise Smiles to contact Vincent Sampieri, a real estate and facilities manager of Navigator regarding the subleases. Kuehn obliged by issuing an e-mail to Smiles. The following day, Smiles wrote to Minor to advise that he was waiting for a call from her. Kuehn then reminded Smiles that Minor was out of town and that Smiles should correspond with Sampieri. On January 18, 2011, Sampieri advised Kuehn, that Navigators had signed a lease for office space elsewhere "given the extensive delays in [*2]getting back to us ".
The plaintiff commenced this action by the filing of its summons and complaint in the office of the Clerk on February 10, 2011. In its complaint, the plaintiff advances a single cause of action against the defendant, namely, one for the recovery of money damages in an amount not less than $750,000.00 by reason of the defendant's breach of the lease and its implied covenant of good faith and fair dealing. Issue was joined by service of the defendant's answer dated March 24, 2011. The action was initialized by the filing of a Request for Judicial Intervention on May 18, 2011 and request for preliminary conference which culminated in a discovery order dated June 6, 2011 (Baisley, J).
In October of 2011, the defendant interposed this motion for summary judgment dismissing the plaintiff's complaint for want of a meritorious claim for recovery of money damages from the defendant. The plaintiff opposes the motion on several fronts, including: 1) that the defendant's agent Smiles assumed responsibility for dealing directly with the proposed new tenant and thereby relieved the plaintiff from any obligation to provide the documentation specified in ¶ 14(b) of the lease; 2) that the language limiting the recourse of the plaintiff to specific performance is ambiguous; 3) that such limitation does not preclude recovery of money damages because the remedy of specific performance was rendered meaningless by the proposed tenant's leasing of office space elsewhere; and 3) the instant motion is premature for want of discovery. The court, however, finds otherwise and thus grants the defendant the summary judgment demanded by it in the instant motion.
Pursuant to the ¶ 25(F) of the lease, the parties agreed that said lease would be governed by and construed in accordance with the laws of Connecticut, the situs of the premises. Both sides thus advance the law of Connecticut as controlling both the substantive and procedural issues presented to this court on the instant motion.
Under Connecticut practice statutes "summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law .... (Cantonbury Heights Condominium Ass'n, Inc. v. Local, 273 Conn. 724, 873 A.2d 898 [2005]).
Under the laws of Connecticut, "A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction ...[T]he intent of the parties [to a contract] is to be ascertained by a fair and reasonable construction of the written words and ...the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract ... Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity [*3]...[C]ourts do not unmake bargains unwisely made. Absent other infirmities, bargains moved on calculated considerations, and whether provident or improvident, are entitled nevertheless to sanctions of the law ... Although parties might prefer to have the court decide the plain effect of their contract contrary to the agreement, it is not within its power to make a new and different agreement ... As stated by our Supreme Court, a presumption that the language used is definitive arises when ... the contract at issue is between sophisticated parties and is commercial in nature" (Tallmadge Bros., Inc. v. Iroquois Gas Transmission, 252 Conn. 479, 746 A.2d 1277 [2000]; Wyatt Energy, Inc. v. Motiva Enter., LLC, 128 Conn. App. 666, 682, 19 A.3d 181 [2011]; Neubig v Luanci Constr., LLC, 124 Conn. App. 425, 432—33, 4 A.3d 1273 (2010]). The parol evidence rule forbids the use of extraneous evidence to vary or contradict the terms of an express and unambiguous contract (see Heaven v. Timber Hill, LLC, 96 Conn. App. 294, 307, 900 A.2d 560 [2006]).
Here, the moving papers demonstrated, prima facie, that clear and express provisions for the subletting of the subject leasehold and the requirements imposed upon the plaintiff, as tenant, to obtain the defendant's consent to any such sublease are set forth in that ¶ 14 of the lease. The moving papers further established, prima facie, a failure on the part of the plaintiff to comply with such requirements by its production of a proposed sublease and other documentation relative to the financial well being and credit worthiness of the proposed new tenant so that the fifteen day period within which the defendant was required to advise the plaintiff of its consent or rejection of the proposed sublease never began to run. There was thus no breach of the express terms of the lease by the defendant nor any breach of the implied covenant of good faith and fair dealing for which the defendant could be cast in damages. The plaintiff's claims that it was relieved of its obligations under ¶ 14(b) of the lease due to the purported assumption of such obligations by the defendant is belied by the record and violative of the parol evidence rule applicable to the subject lease under the authorities cited above.
Under these circumstances, it is unnecessary to determine whether the contractual limitations imposed on the plaintiff's remedy by the terms of the lease preclude the plaintiff's prosecution of this action for money damages.
The plaintiff's claims that this motion is premature due to the absence of discovery is rejected as unmeritorious. While §17-47 of Connecticut's Practice Book affords a party opposing a summary judgment motion the remedies of denial or continuance where "documents are unavailable" and it "appears from the affidavits of a party opposing the motion that such party cannot, for reasons stated, present facts essential to justify opposition", the opposing party must show by affidavit precisely what facts are within the exclusive knowledge of the [party to be deposed] and what steps he has taken to attempt to acquire these facts (see Great Country Bank v Pastore, 241 Conn. 423, 696 A.2d 1254 [1997]; Peerless Ins. Co. v Gonzalez, 241 Conn. 476, 697 A.2d 680, [1997]). Here, no such showing was made by the plaintiff as the information which the plaintiff characterizes necessary namely, information regarding the sum and substance of conversations between the defendant and the plaintiff's proposed tenant, Navigator, is neither essential to justify opposition nor exclusively within the knowledge of the defendant. The plaintiff's conclusory statement that additional time is needed is insufficient to warrant a denial an adjournment of this motion pending discovery. [*4]
In view of the foregoing, this motion (#001) by the defendant for summary judgment dismissing the plaintiff's complaint is granted.
Settle judgment upon a copy of this order.
DATED: _________________________________________________
Thomas F. Whelan, J.S.C.
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