The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
For the reasons stated below, both motions are denied.
Defendant Ashley Plaza Mall Associates ("APMA") is a
partnership which owns a shopping mall in the state of South
Carolina. APMA and Kassner were involved in a transaction which
involved Burlington Coat Factory Warehouse of Charleston, Inc.
("Burlington") renting space in the Ashley Plaza Mall in
Charleston, South Carolina. Kassner, an attorney for Burlington
reviewed the subject lease from APMA for Burlington. With
respect to defendant Richard S. Lefrak ("Lefrak"), Kassner
claims that Lefrak made written representation to him of
Lefrak's status as a partner in APMA in a letter dated June 14,
1984, that he relied on that representation and accordingly,
prior to September 24, 1989, he agreed to be hired by Lefrak on
behalf of APMA to procure a lease with Burlington.
Kassner alleges that their agreement was confirmed by a
letter from APMA, dated September 24, 1989,*fn1 Complaint,
Exhibit A, whereby APMA agreed to pay Kassner a fee of $1.00
for every square foot leased by Burlington and which followed
a letter of September 22, 1989 on the same issue. Burlington
entered into a lease dated August 25, 1989 but commencing
December 8, 1989, for 60,575 square feet of space in the Ashley
Plaza Mall. APMA has not paid Kassner any fee.
APMA and Lefrak claim that Lefrak did not hire Kassner on
behalf of APMA or make such representations in connection with
the 1989 Lease, and that when Kassner asserted a right to a fee
APMA informed him any payment was conditional on the terms of
the Lease remaining unchanged from the terms of a twenty-year
lease it had negotiated and tendered to Burlington in 1984 (but
which was never executed) and which were incorporated in the
proposed 1989 Lease. Defendants assert that Kassner thereafter
changed substantial terms of the 1989 Lease from the 1984
terms, including a right for Burlington to terminate upon 12
months notice, and thus is not entitled to any commission for
that reason. The 1984 lease, which was never executed by the
parties, has been submitted as evidence but the Lease at issue
here, the 1989 Lease, has not been submitted nor have its
Defendants originally moved for dismissal on the ground of
res judicata and defendant Lefrak moved for dismissal on the
ground that he withdrew as a partner of APMA in 1989, prior to
the discussions at issue. The Court denied both motions from
the bench during oral argument.
To grant a motion for summary judgment a court must find 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
because, after sufficient time for discovery, the non-moving
party has not made a sufficient showing of an essential element
of its case as to which it has the burden of proof. Celotex
Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). Summary judgment is appropriate if the evidence offered
demonstrates that "there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter
of law." Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). The burden rests on the moving
party to demonstrate the absence of a genuine issue of material
fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598,
26 L.Ed.2d 142 (1970), and the Court must view the facts in the
light most favorable to the non-moving party. Meiri v. Dacon,
759 F.2d 989, 997 (2d. Cir. 1985),
cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985).
Plaintiff's claim is replete with issues of material fact.
Affidavits of officers of APMA maintain that
1) the letters of September 22 and 24, 1989 were conditional
on the parties entering into a lease sent to Burlington on or
about July 10, 1989 with a revised price of $4.00 per square
foot and such a lease was never signed (copies of the proposed
lease and the executed lease were not contained in the motion
2) there was no consideration for the letters of September 22
and 24, 1989, agreeing to pay plaintiff the commission of $1.00
per square foot claimed herein; and
3) plaintiff has no claim against Lefrak in view of Lefrak's
withdrawal from the partnership in May of 1989 and because
plaintiff was advised of Lefrak's withdrawal prior to ...