Miller's Supermarket v Rite Aid of N.Y., Inc.

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Miller's Supermarket v Rite Aid of N.Y., Inc. 2013 NY Slip Op 30728(U) January 9, 2013 Supreme Court, Rensselaer County Docket Number: 236415 Judge: George B. Ceresia Jr Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPRF,ME COURT COUNTY OF RFMSELAER MILLERS SUPERMARKETT, Plaintiff, Index No. 2364 15 NO. 41-0741-2Oll -against- IUIE AID OF NEW YO=, INC., Defendant. AI1 Purpose Term Hon+George B. Ceresia, Jr., Supreme Court Justice Presiding Appearances: CORRIGAN, McCOY & BUSH, PLLC Attorneys for Plaintiff (Joseph M. McCoy, Esq., Of Counsel) 220 Columbia Turnpike Rensselaer, New York 12144 RAVEN & KOLBE, LLP Attorneys for Defendant (Sheryl Fyffe-Gauntlett, Esq., Of Counsel) 126 East 56* Street, Suite 202 New Yo&,New York 10022 DECISIONlORDER George B. Ceresia, Jr., Justice This action arises fiom the alleged breach of two provisions of an mended lease agreement, dated May 26, 1994, executed between plaintiff-landlord Miller's Supermarket (hereinafter plaintiff) and defendant-tenant Rite Aid of New York, Inc. (herehafter defendant). In April 2009, the parties executed a second &=ended lease agreement, which [* 2] provided, in pertinent part: CommencingNovember 1,2009, and expiring January 3 1,2010 (the Txtension Term ), Tenant shal pay monthly minimum rent in the amount of Twelve Thousand Eight Hundred EightyTwo and I9/100 Dollars ($12,882.19) each on the fmt day of each month in advance. During said Extension Term, Tenant shall continue to pay LandIord percentage rent as set forth i the n Lease agreement with respect to the first renewal period. . Tenant shall promptly pay any outstanding invoices for taxes and shall pay its usual proportionate share of the taxes through the end of its tenancy. (Fyffe-GauntIett Aff., Ex. C, at Ex. C). In the first cause of action, plaintiff alleges that defendant breached its contractual obligation E pay real .estate taxes for the years 1994 o through 2008 Fyffe-Gauntlett Aff., Ex.A, at p. 1-2). In the second cause of action, plaintiff alleges that defendant breached is contractual obligation to pay percentage rent for t the entire extension term - November 1,2009 through Januasy 3 1,2010 - set forth i the n second amended lease agreement (see Fyffe-Gauntlett Aff., Ex.A, at p. 2-3). By Decision and Order, dated December 23, 201 I, Supreme Court (Hummel, A.S.C.J.) determined that plaintiff s claim for reimbursement of taxes for the years 1994 through 2005 was barred by the statute of limitations (see Fyffe-GauntlettAff,, Ex. E, at p. 3). With respect to taxes for the years 2005 through 2008, Supreme Court found that plahtXf s claim was barred by the terms of the exculpatory clause contained within the second amended lease agreement @ Fyffe-Gauntlett Aff,, Ex. E, at p. 3-4). Plaintiff now moves for summaryjudgment,m order gantingplaintiffreimbursement -2- [* 3] of tax credits for April 2009 through December 2009,and an order directingdefendant to pay percentage rent for November 1, 2009 through January 3 I., 2010. Defendant submitted papers in opposition to plaintiff s motion and cross-rnoved for summaryjudgment dismissing the complaint. STANDARD OF REWEW Summaryjudgment is a drastic remedy and should not be granted where there is any doubt as to the existence of atriable issue (Currier v Wiltrom ASSOCS., AD2d 956,956 250 [1998] [internal quotation marks and citations omitted]). To obtain summary judgment, a movant must establish his or her position suficiently to wmant the court as a matter of law i directingjudgment i his or her favor (Friends of Animals. Inc. v Associated Fur Mfrs., n n 46 NY2d 1065, 1067 119791, quoting CPLR 3212Dl). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate my genuine material issues of fact from the case (seeAlvarez vProspect Hosp., 68 NY2d 320,324 119861). The failure to make such a showing mandates deniaf of the motion, regardless of the suficiency of the opposing papers- WinemadvNew YorkUniv.Med. Ctr., 44NY2d 851,853 [1985]). If,however, a prima facie showing is made, the burden shifts to the party opposing the motion for summary judgment to come forward with evidentiary proof in admissible form to establish the existence of material issues of fact which require a trial (seeZuckerman v City of New -49 NY2d 557,562 [lSSO]). York, -3- [* 4] DISCUSSION Initially, defendant points out that plaintiff failed to annex the pleadings to its motion for summnary judgment as required under CPLR 32 12(b). Although such a procedural defect ordinariIy warrants denial of the notion without prejudice, the Court elects to address the merits given defendant s submission of the pleadings i opposition (see e.% Crossett v Wing n Farm.Inc., i 9 9 3 d 1334?1335 [2010]; SanacorevSanacore,74AD3d 1468, I469 [2010]). As to plaintiff s request for an order granting reimbursement of tax credits for A p d 2009 though December 2009, the Court finds that the cornplaint wholly fails to plead a cause of action for such relief. More particularly, in the first cause of action, plaintXfso1dy seeks credit toward red estate taxes paid for the years 1994 through and including 2008 and during the years 1994 through 2008 (Fyffe-Gauntlett Aff., Ex. A, q17-18). Stated differently, the comp ¬aintis devoid of any reference to defendant s alleged tax obligations for the April 2009 through December 2009 time frame. This prong of defendant s cross- motion for summary judgment should, therefore, be granted and the first cause of action dismissed. Next, the Court turns to the second cause of action and pIainti ¬f s request for an order granting percentage rent for November 1,2009 through January 3 1,20 IO. To prevail on a breach of contract claim, a party must prove the existence of a contract, performance by the To the extent a prior court stated that plaintiff had a claim for taxes which may or may not have been paid during the period of April 30,2009 to January I., 20 10, this Court deems such language mere dicta insofar as it contradicts the request for relief sought in the complaint (Fyffe-Gauntlett Aff., Ex. E, at p. 4 . ) -4- [* 5] injured party, breach by the adverse party and damages (see Clearmont Prop.. LLC v Eisner, 58 AD3d 1052, 1055 [2009]). In support of its motion, plaintiff failed to present a proper afidavit from an individual with personal knowledge, or otherwise provide an adequate foundation for the documentary evidence submitted. Rather, plaintiff presented an unsigned affidavit from Joseph Quillinan, m offmr and part-owner of the corporation, together with two unauthenticated business records. I the absence of competent evidence, the Court finds n that plaintiff did not sustain its burden of establishing prima facie entitlement to judgment as a matter of law Legion Ins. Co. v Northeastern Plate Glass Corp., 41 AD3d 933, 933-934 120071.; cf.Kool-TempHeatintr & Cooling v Ruzjka, 6 Al33d 869,869-870 [2004]). Finally, turning to the remaining prong of the cross-motion, defendant maintains that pIaintiff was only entitled to percentage rent on gross sales until October 29,2009, the date it vacated the leased premises. Stated differently, defendant urges the Court to find that the lease and subsequent amendments did not require payment of percentage rent throughout the extension tern (November 1 2009-January 3 1,20 10). To this end, it is well established that the purpose of contract interpretation is to give effect to the parties intention (seeDesautels v Desautels, 80 AD3d 926,928 [ZO 11I; AGCO Curp. vNorthrop GrufnmmSpace & Mission SYs. Corp., 61 AD3d 562, 564 [ZOOS]). Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used (Goldman v White Plains Ctr. ¬or Nusim Care, LLC, 11 NY3d 173,176 [2008]). Moreover, the threshold determination o f whether an ambiguity exists is a question -5- [* 6] of law (see Riverside S . Planning Corp. v CRPExtell Riverside, L.P., 13 NY3d 398,404 [2009]; Hudock v Village ofEndicott, 28 AD3d 923,924 [2006]). Here, defendant presented the second amended lease agreement, which was signed by the parties representatives and contained the following express language: Commencing November 1,2009, and expiring January 3 1,20 10 (the Extension Term ), Tenant shall pay monthly minimum rent in the amount of Twelve Thousand Eight Hundred EightyTwo and 19/100 Dollars ($12,882.19) each on the first day of each month in advance. During said Extension Term, Tenant shall continue to pay Landlord percentwe rent as set forth in the Lease ameement with respect to the first renewal period. (Fyffe-Gauntlett Aff., Ex. C , at Ex. C) (emphasis supplied). ARer carefully reviewing the foregoing language, the Court finds that defendant was mmbiguousiy required to pay plaintiff percentage rent for the entire extension term, i.e. November 1,2009-Janwry 3 1, 20 10, regardless of the leased premises location. Accordingly, the Court finds that summary judgment is not warranted. Accordingly it is ORDERED that plaintiffs motion for summary judgment is hereby denied; and it is further ORDERED that defendant s cross-motion is granted insofar as plaintiff s first cause of action is dismissed, and i all. other respects denied. n This DecisiodOrder is being retuned to the Attorneys for Defendant. All original -6- [* 7] supporting documentation is being filed with the County Clerk s Ofice. The signing of this DecisiodOrder shall not constitute entry or filing under CPLR 2220. Counsel are not relieved from the applicable provisions of that rule relating to fiiling, entry and notice of I entry- Dated: Troy, New York January 9,2013 xge B. Ceresia, Jr. Supreme Court Justice . .. Papers Considered: I. Motion for Summary Judgment, dated August 29,20 12; Afirmation of Joseph M.McCoy, Esq., with annexed exhibits; 2. Notice of Cross-Motion for Summary Judgment, dated September 23,2012; Aff~mation Sheryl Fyffe-Gauntlett, Esq., in Support of Cross Motion for of Summary Judgment and in Opposition to Plaintiffs Motion for Summary Judgment, dated September 23,2012, with m e x e d exhibits; and 3. Affirmation of Joseph M. McCoy, Esq. i Response to Defendant s Reply, dated n October I, 20 12. a Plaintiff dso submitted an unsigned affidavit from Joseph Qlullinan in support of its motion for summary judgment, -7-

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