Kate Spade & Co., LLC v G-CNY Group LLC
Annotate this CaseDecided on January 28, 2019
Civil Court of the City of New York, New York County
Kate Spade & Company, LLC, Petitioner-Sublandlord,
against
G-CNY Group LLC, Respondent-Subtenant, "XYZ Corp.", Respondent-Undertenant.
LT-076559-18
Petitioner
Joshua Kopelowitz, Esq.
Rosenberg & Estis, P.C.
Respondent
Daniel E. Katz, Esq.
Rich, Intelisano & Katz, LLP
Dakota D. Ramseur, J.
Petitioner-Sublandlord Kate Spade & Company, LLC commenced this commercial summary nonpayment proceeding against Respondent-Subtenant G-CNY Group LLC to recover 1440 Broadway, Fourth Floor, New York, New York 10018 (the "Premises"). Subtenant now moves pursuant to CPLR 3212 for summary judgment dismissing the Petition (sequence 001). Sublandlord cross-moves pursuant to CPLR 406, 3212, and/or 3211 for judgment on the Petition and to dismiss ten of Subtenant's thirteen affirmative defenses and its sole counterclaim [*2](sequence 002). For the reasons below, Subtenant's motion to dismiss is denied, Sublandlord's motion for summary judgment is granted, possessory and monetary judgment shall be entered for Petitioner-Sublandlord, and the matter shall be scheduled for an attorneys' fees hearing.
BACKGROUND FACTS
Subtenant has conceded nonpayment of rent and additional rent (Resp/Wurm Aff 22). Sublandlord leased the Premises from Overlandlord Investment Properties Associates in 1997 (Pet'r Exh D, [the "Overlease"]; Pet'r/Kopelowitz Affirm 14[a]). Sublandlord and Subtenant negotiated and ultimately executed a sublease for the Premises on or about December 31, 2017 (Pet'r Exhs E/Resp Exh B [the "Sublease"]). The Sublease was effective February 6, 2018, upon Overlandlord's consent and subject to a five-month rent abatement (Pet'r Exh F/Resp Exh C [the "Consent"]; Sublease 1; Pet'r/Bates Aff 19).[FN1] During negotiations, and prior to execution of the Sublease, Sublandlord's broker emailed Subtenant a list of approved contractors, together with a statement that "any reputable [general contractor] can be used, and [the Overlandlord] would ask for references if they don't recognize" the contractor (Resp/Wurm Aff 6, citing Resp Exh A [the "Broker Email"]).
Current monthly rent is $72,794.40 (Sublease 1[b]). In addition to monthly rent, Subtenant is responsible for additional rent, defined as "any and all amounts other than Fixed Rent and [Paragraph] 24 Rent which, by the terms of the Overlease, become due and payable by Sublandlord to Overlandlord as additional rent or otherwise with respect to the Premises " (Sublease 18). Such charges include, among other things, those "attributable to the Premises or the use thereof or services or utilities provided thereto," "any additional charges to Subtenant on account of Subtenant's use of cleaning and elevator services after hours or in excess of normal usage," and the "cost of cooling towers, water and electric, serving the HVAC units, as well as maintenance of the units" (id.). Subtenant is also responsible for utilities, payable as "108% of the amount shown on the electric submeter measuring Subtenant's electric usage and consumption" at the Premises (Sublease 20).
The Sublease incorporates the Overlease:
all of the terms, covenants, conditions and provisions in the Overlease are hereby incorporated in, and made a part of this Sublease, and such rights and obligations as are contained in the Overlease are hereby imposed upon the respective parties hereto; the Sublandlord herein being substituted for the Landlord named in the Overlease, and the Subtenant herein being substituted for the Tenant named in the Overlease ( 3; see also Resp Exh C 7, 11).Thus, pursuant to the Overlease, if Subtenant is late paying rent and/or additional rent, Subtenant is responsible for a late fee, calculated as the Chase Manhattan Bank, N.A. prime rate plus 3% (Overlease 42[A]). Similarly, Sublandlord is entitled to legal expenses and fees incurred in seeking arrears (Overlease 5).
The Sublease memorializes the parties' agreement that Subtenant was taking the Premises [*3]"as-is" and would require renovation, the sole obligation for which would fall upon Subtenant (Sublease 5). Any renovations, however, would require the approval of both Overlandlord and Sublandlord, whose consent "shall not be unreasonably withheld" (Sublease 23).
The crux of the dispute, and Subtenant's defense, is Sublandlord's alleged violation of-in Subtenant's words-the "very essence" of the deal by not allowing Subtenant to perform renovations on the Premises utilizing "open shop" contractors; that is, contractors which do not mandate union membership and which are, therefore, generally cheaper. According to Subtenant, the parties had an understanding that Sublandlord would be permitted to utilize open shop contractors to capitalize upon cost savings and therefore render the renovation economically viable (Resp/Wurm Aff 20). Sublandlord disputes that characterization.
In the days and months after the February 6, 2018 Consent, the parties discussed access to and work on the Premises (Pet'r/Bates Aff ¶¶ 27-30; Pet'r Exhs G, O, P, R-T).[FN2] Relying on its interpretation of the Broker Email and Sublease, Subtenant submitted for approval the names of six non-union mechanical contractors with whom Subtenant had previously worked (Resp/Wurm Aff 16-17). On July 6, 2018, Overlandlord granted, on a "one-time basis, as an accommodation," approval for three of the open shop contractors, but denied approval to three other open shop contractors for, among other things, the contractors' "failure to qualify as Union contractors" (Resp Exh D). Though Subtenant contends that the "failure to qualify as Union contractors" was Overlandlord's only reason for denial, the July 6 letter elaborates that, in the Overlandlord's opinion, the use of non-union labor could result in "work stoppage, picketing, or labor disruption or dispute," and that the use of Overlandlord's approved contractors maintains "quality control" (Resp Exh D at p 2). In a July 13, 2018 response, Subtenant protested Overlandlord's denial as unreasonable, arguing that the parties had always intended the use of closed shop contractors in order to make the "short term deal feasible" (Resp/Wurm Aff 19, Resp Exh E). In a July 23, 2018 reply, Sublandlord supported Overlandlord's position, affirmed its commitment to the subtenancy, and noted that, as of July 15, 2018, the Sublease's initial five-month abatement had ended (Resp Exh F).
Because, in Subtenant's view, Overlandlord and Sublandlord had unreasonably withheld approval of Subtenant's contractors, Subtenant has "disavowed" the Sublease and "refused to pay any rent" (Resp/Wurm Aff 22). According to Subtenant, "open shop" contracting was "a critical part of the deal" discussed at length during negotiations because, given the Overlease's relatively short (by commercial standards) remaining four-year term, "the transaction made economic sense so long as [Subtenant] could realize the cost savings from using particular 'open shop' trade contractors" (Resp/Wurm Aff 4-5). By Subtenant's calculations, open shop contractors would have saved at least $415,000 over unionized contractors (Resp/Wurm Aff 8).
On October 17, 2018, Sublandlord served a written ten-day notice upon Subtenant, alleging rental arrears of $664,772.27 (Pet'r Exh K).[FN3] When Subtenant failed to respond, Sublandlord filed this Petition on November 1, 2018. Subtenant answered, asserting thirteen [*4]affirmative defenses and one counterclaim.
In support of its motion for summary judgment (sequence 001), Subtenant, relying upon the affidavit of its officer James Wurm, argues: (1) that this Court lacks subject matter jurisdiction because Subtenant never took physical possession of the Premises; (2) that the Sublease self-terminated due to the Overlandlord's failure to approve Subtenant's work; (3) that the Petition is barred by Sublandlord's failure to deliver possession and a constructive eviction; (4) that the Sublease should be rescinded on the basis of frustration of purpose; and (5) that the Sublease was induced by fraudulent misrepresentation.
In opposition and in support of its cross-motion for summary judgment, Sublandlord, relying upon the affidavits of its Senior Director Megan Bates and Facilities Department Director Domingo Jimenez, argues: (1) that Subtenant's first (subject matter jurisdiction), fifth (defective rent demand), sixth (waiver, laches, estoppel), seventh and eighth (lack of jurisdiction/arguments that Sublease is void), ninth (constructive eviction), tenth (Sublandlord's breach), eleventh (the Sublease never commenced), twelfth (failure to state a cause of action), and thirteenth affirmative defense and first counterclaim (fraudulent misrepresentation) should be dismissed; (2) that Subtenant's claim for rescission must be denied; and (3) that, based on those dismissals, the plain text of the Overlease and Sublease, and the undisputed rent arrears, Sublandlord is entitled to summary judgment in the full amount sought and attorneys' fees.
DISCUSSION
Summary judgment is a drastic remedy that should not be granted where there exists a triable issue of fact (Integrated Logistics Consultants v Fidata Corp., 131 AD2d 338 [1st Dept 1987]). On a summary judgment motion, the court must view all evidence in a light most favorable to the non-moving party (Rodriguez v Parkchester South Condominium Inc., 178 AD2d 231 [1st Dept 1991]). The moving party must show that as a matter of law it is entitled to judgment [Alvarez v Prospect Hosp., 68 NY2d 320 324 [1986]).
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 any material issues of fact from the case (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). After the moving party has demonstrated its prima facie entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial (Zuckerman v City of New York, 49 NY2d 557 [1980]). The First Department recently held that a plaintiff seeking summary judgment succeeded in making "a prima facie showing for rent arrears accruing. . .by submitting the original lease. . .and a detailed statement documenting outstanding rent arrears" (Dee Cee Assoc. LLC v 44 Beehan Corp., 148 AD3d 636, 641 [1st Dept 2017]).
I. First, seventh, eighth, and eleventh affirmative defenses (possession)
First, Subtenant advocates dismissal based on its first affirmative defense-a lack of subject matter jurisdiction-because it purportedly never took possession of the Premises. Conversely, Sublandlord argues that Subtenant's first affirmative defense on the same basis [*5]should be dismissed. Even accepting Subtenant's assertion that it never took physical possession of the Premises, "possession" merely means the legal right of exclusive possession, regardless of physical occupancy (Alcindor v Raphael, 2018 NYLJ LEXIS 569, *6 [Civ Ct NY County, Stoller, J.], citing Massare v Di Nardo, 35 AD3d 1157 [4th Dept 2006], Lyke v Anderson, 147 AD2d 18, 20 [2d Dept 1989]). "As soon as a lease is executed and delivered, the tenant acquires the right to possession as of the date of the commencement of the term even in the absence of physical possession" (Fishel v Baronelli, Ltd., 119 Misc 2d 625, 626 [Civ Ct NY County 1983] [Saxe, J.]). It is substantively undisputed, however, that Overlandlord provided its consent to the Sublease on February 6, 2018, in a document signed by Overlandlord, Sublandlord, and Subtenant. Thus, Subtenant's argument that it was unable to take physical possession of the Premises is irrelevant, and the branch of its motion seeking dismissal on that basis is denied. The Court also rejects Subtenant's arguments-as initially asserted in its seventh,[FN4] eighth, and eleventh affirmative defenses-that Subtenant never took possession because certain Sublease conditions were never satisfied or the Sublease was not "unconditionally" approved. Subtenant's allegations are refuted by the plain text of the Landlord's February 6, 2018 Consent (Resp Exh F). Accordingly, dismissal of Subtenant's first, seventh, eighth, and eleventh affirmative defenses is granted.
II. Seventh and thirteenth affirmative defenses (reformation and Overlandlord's rejection of three open-shop contractors)
Regarding Subtenant's argument that Sublandlord misrepresented the likelihood of Overlandlord's approval of Subtenant's preferred contractors, the Court does not, as an initial matter, agree with Sublandlord's position that a merger clause, by itself, excludes parol evidence meant to show fraud in inducing the contract-here, an alleged misrepresentation regarding the type of contractor which would be permitted.
Unless a statute or policy dictate otherwise, a written agreement defines the rights and obligations of the parties, particularly in the context of real property transactions negotiated at arm's length between sophisticated, counseled parties (Anita Babikian, Inc. v TMA Realty, LLC, 78 AD3d 1088, 1090 [2d Dept 2010], citing Abiele Contr. v New York City School Constr. Auth., 91 NY2d 1, 9 [1997]; see also Fiore v Oakwood Plaza Shopping Ctr., 78 NY2d 572, 581 [1991] ["Defendants were sophisticated parties involved in an arm's length commercial transaction .... The purchase price of the land alone was well in excess of $1 million, indicating the magnitude of the project."]). Where parties-particularly sophisticated, counseled parties-exclude a term, courts must conclude that the omission was intentional (Fundamental Long Term Care Holdings, LLC v Cammeby's Funding LLC, 20 NY3d 438, 445 [2013] ["And if it were, in fact, the case that the parties meant for fair market value to be due , this is not the sort of term these sophisticated, counseled parties would have reasonably left out of the option agreement."]).
"The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent," as expressed by "what they say in their writing" [*6](Greenfield v Philles Records, Inc., 98 NY2d 562, 569-70 [2002]). Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms (id.). Extrinsic evidence of intent may be considered only if the agreement is ambiguous, which is an issue of law for the courts to decide (id.). A contract is unambiguous if its language has "a definite and precise meaning, unattended by danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion" (id.). "Extrinsic and parol evidence is not admissible to create an ambiguity in a written agreement which is complete and clear and unambiguous upon its face" (S. Rd. Assoc., LLC v Intern. Bus. Machines Corp., 4 NY3d 272, 278 [2005]).
"A merger clause requires the full application of the parol evidence rule, thereby barring extrinsic evidence to vary the terms of a writing" (Pludeman v N. Leasing Sys., Inc., 74 AD3d 420, 424 [1st Dept 2010]). "A general merger clause is ineffective to exclude parol evidence to show fraud in inducing the contract where the complaint states a cause of action for fraud, the parol evidence rule is not a bar to showing the fraud-either in the inducement or in the execution-despite an omnibus statement that the written instrument embodies the whole agreement, or that no representations have been made (Danann Realty Corp. v Harris, 5 NY2d 317, 320 [1959]). Here, the Sublease contains a merger clause which provides that the Sublease "constitutes the entire agreement between the parties and all representations and understanding have been merged herein" ( 29).
Nevertheless, Subtenant's fraud allegations are refuted by the Sublease and Consent because a "specific disclaimer destroys the allegations that the agreement was executed in reliance upon contrary oral representations" (id.). To the extent that Subtenant argues that the use of non-"open shop" contractors was the "essence of the deal," Subtenant's position is refuted by the undisputed absence, in the Sublease, Overlease, or Overlandlord's written consent to the Sublease, of any provision reflecting that understanding. It is implausible for Subtenant to assert, in a jurisdiction relying heavily upon union labor in real estate and in a transaction between sophisticated parties where the use of open-shop contractors was purportedly critical, that there would be no specific mention of open-shop contractors in the documents governing the parties' agreement.
Even if the Court were to circumvent, as Subtenant urges, the four corners of the Overlease and Sublease, the only relevant documentation Subtenant submits for review is the Broker Email, sent during negotiation, which contains only an ambiguous statement that "any reputable [general contractor] can be used," followed by a caveat that the Overlandlord "would ask for references if they don't recognize" the contractor" (Resp/Wurm Aff 6, citing Resp Exh A). Notably there is no mention of any "open" or "closed" shop contractors, nor is there any other detail provided by Subtenant regarding any purported misrepresentations by Sublandlord (see CPLR 3016[b] ["Where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail"]). Moreover, the brief email implicitly confirms Sublandlord's position that Landlord would not, and need not, confirm all of Subtenant's preferred contractors.
That, as Subtenant argues, the use of one type of contractor versus another might make the Sublease more or less economically feasible is insufficient, particularly where no support for that contention has been provided. To the contrary, at least one provision of the Sublease [*7]provides that Subtenant's renovation work may not "create any work stoppage, picketing, labor disruption or dispute or violate Landlord's union contracts affecting the land and/or building, or materially adversely interfere with the business of Landlord or any lessee or occupant of the building" (Sublease 53[g]).
Subtenant also argues that Paragraph 9 of the Sublease contains a self-terminating provision which absolves Subtenant of liability under the Sublease if Overlandlord does not approve Subtenant's work. Paragraph 9 provides, however, that
In the event Overlandlord shall not exercise any of its options pursuant to the Overlease with respect to the Premises, Sublandlord makes no representation with respect to obtaining Overlandlord's approval of this Sublease and Sublandlord's work, if any, and in the event that Overlandlord notifies Sublandlord that Overlandlord will not give such approval, Sublandlord will so notify Subtenant and, upon receipt of such notification by Sublandlord of the disapproval by Overlandlord, this Sublease shall be deemed to be null and void and without force or effect, and Sublandlord and Subtenant shall have no further obligations or liabilities to the other with respect to this Sublease and any monies paid by Subtenant hereunder shall be promptly returned to Subtenant (emphasis added).Acknowledging that the emphasized portion of Paragraph 9 would, interpreted verbatim, not assist Subtenant's argument, Subtenant argues that the Sublease's reference to "Sublandlord's" rather than "Subtenant's" work was Sublandlord's drafting error, and seeks reformation on that basis. While Subtenant correctly notes that "extrinsic evidence is admissible in a reformation action even if there is no ambiguity" (Gramercy 222 Residents Corp. v Gramercy Realty Assoc., 209 AD2d 181 [1st Dept 1994]), reformation nevertheless requires "mutual mistake or mistake of one party and fraud of the other with respect to a material part of the contract " (Thompson v Howell, 20 AD2d 963, 963 [4th Dept 1964]). The latter has not been demonstrated here.
Other portions of the Sublease present a similar impediment to the Court accepting Subtenant's argument. According to Subtenant, the use of "Sublandlord's" instead of "Subtenant's" had to have been an error because Sublease Paragraph 5 provided that all work on the Premises would be performed by Subtenant (Resp/Wurm Aff 11-12). That provision, however, provides that there would be no "obligation on the part of Sublandlord to perform any work, supply any materials or incur any expense whatsoever in connection with the preparation of the Premises for Subtenant's occupancy thereof" (emphasis added). It does not, as Subtenant argues, eliminate the possibility of any work by Sublandlord.
Similarly, Subtenant highlights another instance, in the signature line, in the Sublease where "Sublandlord" mistakenly replaced "Subtenant" (Resp/Wurm Aff 13, citing Sublease at p 17). As Subtenant then immediately notes, however, this was corrected prior to execution, thus undermining Subtenant's argument that the use of "Sublandlord" in Paragraph 5, where it remained uncorrected, was not intentional.
Moreover, the Court finds that, reading the Overlease and Sublease together, Subtenant's interpretation of Sublease Paragraph 9 would impermissibly render other provisions ineffectual (Baker v 16 Sutton Place Apt. Corp., 72 AD3d 500, 501 [1st Dept 2010] ["A reading of the contract should not render any portion meaningless"]). For example, Paragraph 62(a) of the [*8]Overlease explicitly contemplates the possibility of work by Sublandlord. Similarly, Sublease Paragraph 23 provides that Subtenant may not make any changes, alterations, improvements or decorations to the Premises without Sublandlord's prior written consent. Yet another provision, Overlease Paragraph 66, provides that " in any case where Landlord's reasonableness in exercising its judgment is in issue, Tenant's sole remedy shall be an action for specific performance, declaratory judgment or injunction, or expedited arbitration as provided in Paragraph 67 below." Accordingly, Subtenant's seventh and thirteenth defenses, as well as its related first counterclaim, are dismissed.
III. Ninth and tenth affirmative defenses (constructive eviction/frustration of purpose)
Subtenant's assertions of constructive eviction and frustration of purpose, asserted as the ninth and tenth affirmative defenses, are similarly unsupported. There is no indication that Subtenant was ever prevented from accessing the Premises; rather, even if the Court ignored the substantial communications between the parties regarding physical access to the Premises, Subtenant's version of events, three of their preferred contractors were not approved to work at the Premises. As the Court of Appeals stated in a case cited by Subtenant, only the "the landlord's wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 83 [1970]). Here, Subtenant has not demonstrated any "wrongful" acts by Sublandlord. By way of illustration, the partial constructive eviction in Barash, cited by Subtenant, involved a lack of proper ventilation (26 NY2d at 85-86). In Dinicu v Groff Studios Corp., (257 AD2d 218, 221 [1st Dept 1999]), the tenant, whose proprietary lease explicitly permitted "combination residential and art related business or professional use," was found to have been constructively evicted when the cooperative prevented the tenant from using her loft as a dance studio. Denying permission to contractors, which Overlandlord explicitly retained the ability to do, was permissible.
Here, though Subtenant contends that it was unreasonable for Overlandlord and/or Sublandlord to withhold approval from Subtenant's preferred, open-shop contractors, Subtenant does not cite-and the Court is unaware of any-support for the proposition that such actions constitute constructive eviction, particularly where the parties' agreement expressly contemplates Overlandlord's approval. That Overlandlord's decision to decline Subtenant's preferred contractors may have increased Subtenant's costs, and therefore reduced Subtenant's profitability, does not equate to constructive eviction or render Overlandlord's determination unreasonable, particularly where Overlandlord approved several of Subtenant's other preferred contractors.
Similarly, there is no basis to rescind the Sublease based on Subtenant's theory that the purpose of the Sublease was frustrated. For example, in another case cited by Subtenant, Jack Kelly Partners LLC v Zegelstein, (140 AD3d 79, 84 [1st Dept 2016]), the subject premises' certificate of occupancy prohibited the commercial use of the space, thereby rendering performance of the commercial lease, which prohibited violating the certificate of occupancy, impossible. Here, Subtenant's nonperformance is based not on impossibility, but its own, unsupported determination of economic infeasibility. Accordingly, the branch of Subtenant's motion seeking summary judgment on that basis is denied. Conversely, the branch of Sublandlord's motion seeking dismissal of Subtenant's related ninth and tenth affirmative [*9]defenses is granted.
As discussed in detail above, Subtenant's first, ninth, and tenth affirmative defenses are dismissed. Additionally, Subtenant's fifth and sixth affirmative defense are dismissed because they are bare, conclusory allegations alleging errors and miscalculations in the rent demand and waiver/laches/estoppel, respectively (Kronish Lieb Weiner & Hellman LLP v Tahari, Ltd., 35 AD3d 317, 319 [1st Dept 2006]). Finally, Subtenant's twelfth affirmative defense, which alleges that the Petition fails to state a cause of action, is "surplusage" which may be asserted at any time even if not pleaded (San-Dar Assoc. v Fried, 151 AD3d 545, 545-46 [1st Dept 2017]). Based on the holdings above, however, it is rendered moot.
IV. Summary judgment on the Petition
Because the remaining affirmative defenses assert jurisdictional arguments which are not substantively addressed in Subtenant's papers, and to the extent that Subtenant does not otherwise dispute the substantive nonpayment allegations, Sublandlord's standing, or the fact that the Premises are not a multiple dwelling or subject to rent stabilization laws (Resp/Wurm Aff 3, 5, 10), Sublandlord is entitled to summary judgment for the full amount sought. Sublandlord is also, as the prevailing party, entitled to recover reasonable attorneys' fees pursuant to Overlease Paragraph 42, to be determined at a hearing.
CONCLUSION/ORDER
For the foregoing reasons, it is hereby
ORDERED that Respondent's motion for summary judgment dismissing the Petition (001) is DENIED; and it is further
ORDERED that Petitioner's cross-motion for summary judgment on the Petition and dismissing Respondent's affirmative defenses (002) is GRANTED, and the Clerk of Court shall enter a judgment of possession with the warrant to issue forthwith, and shall enter a monetary judgment of $850,600.47, with interest from November 1, 2018; and it is further
ORDERED that execution shall be stayed for five days; and it is further
ORDERED that the Clerk of Court shall adjourn the matter for an attorneys' fees hearing on February 20, 2019 at 2:15 p.m. in Part 52 (Room 775).
This constitutes the decision and order of the Court.
Dated: January 28, 2019
New York, NY
___________________________
Dakota D. Ramseur, J.C.C.
CPLR 2219(a) Recitation
Motion and affidavits, Memo of Law, Exhibits 1-2, 3, 4-12
Opposition/Cross-motion, Exhibits 13-16, 17-39
Reply, Memo of Law, Exhibits 40, 41, 42-46 Footnotes
Footnote 1: The Consent was signed by Overlandlord, Sublandlord, and Subtenant.
Footnote 2: The parties dispute whether Subtenant ever took possession and/or began construction.
Footnote 3: Sublandlord calculates, and Subtenant does not substantively dispute (except as noted below), that $850,600.47 is due as of the date of its cross-motion (Pet'r/Bates Aff 4).
Footnote 4: Subtenant's seventh affirmative defense advances another argument which the Court also rejects below in section II.
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