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United Retail Inc. v. Equitable Life Assur. Soc. of U.S.

Other Lower Courts

March 8, 2005

United Retail Incorporated d/b/a Avenue Decision, Plaintiff,
v.
The Equitable Life Assurance Society of the United States and Cor Route 5 Company, LLC Defendants.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

For the Plaintiff: William J. Leberman, Esq.

For the Defendants: Mannion & CopaniBy: Anthony F. Copani, Esq. Of Counsel.

OPINION

Edward D. Carni, J.

Introduction

Plaintiff, United Retail Incorporated, brings a motion pursuant to CPLR 3212 seeking an order of summary judgment on plaintiff's first cause of action entitling plaintiff to recover from defendant, The Equitable Life Assurance Society of the United States, the sum of $100,000.00 plus interest upon the grounds that there are no triable issues of fact thereby warranting judgment in favor of plaintiff as a matter of law.

Defendants Equitable Life and Cor Route 5 Company, LLC ("Cor") oppose plaintiff's motion and cross-move pursuant to CPLR 3212 for summary judgment dismissing plaintiff's complaint as a matter of law and granting partial summary judgment in favor of defendant Cor on its counterclaim for past due minimum guaranteed rent. Equitable Life also seeks an order pursuant to CPLR 3124 compelling plaintiff to comply with defendants' discovery demands. [1]

Factual Background

On September 13, 1995 plaintiff entered into a written Lease Agreement with Fayetteville Mall, L.P. for the lease of 4260 square feet of retail sales space in the Fayetteville Mall in the Town of Manlius, County of Onondaga and State of New York. This lease agreement provided for a twelve-year term. According to plaintiff's moving papers, the lease commenced on November 3, 1995 and plaintiff thereafter operated a retail apparel store for women called "Sizes Unlimited" which was later renamed "Avenue."

On July 2, 1998, the original landlord conveyed the Fayetteville Mall premises to Equitable Life and Equitable Life succeeded to the rights of the landlord under the Lease Agreement. Thereafter, on May 23, 2000, Equitable Life entered into a contract to sell the Fayetteville Mall premises to co-defendant Cor Route 5 Company, LLC ("Cor"). It was Cor's intention to demolish the mall and completely redevelop the property. The termination of plaintiff's lease at or prior to the closing of the sale from Equitable Life to Cor was a condition to the purchase of the property by Cor.

Accordingly, Equitable Life and plaintiff engaged in negotiations for the early termination of plaintiff's lease which otherwise had a termination date of January 31, 2009. [2] These negotiations resulted in the execution of a First Amendment of Lease Agreement dated March 12, 2001. This amendment, inter alia, recognized that Equitable Life had entered into a contract with Cor to sell the mall premises and in paragraph seven thereof, provided, in pertinent part, as follows:

"7. Payment upon Closing of the Sale Agreement: Upon Closing of the Sale Agreement . Seller agrees to pay Tenant the sum of One Hundred Thousand Dollars ($100,000). In consideration for such payment, Tenant hereby agrees, effective upon Closing of the Sale Agreement . time being of the essence, to deliver vacant possession of the Premises (" Vacant Possession") to the purchaser under the Sale Agreement Seller shall provide to Tenant at least three (3) weeks' notice of the scheduled Closing date of the Sale Agreement and at least one week's notice of any rescheduling thereof."

****

Without limiting the foregoing, if Tenant fails to timely deliver Vacant Possession, Seller shall pay said $100,000 to Seller's attorney, in escrow, to be paid to tenant upon delivery by Tenant of Vacant Possession. Seller's legal costs and expenses resulting from Tenant's failure to vacate the Premises in a timely manner shall be deducted from said $100,000 payment. In addition, if Tenant fails to deliver Vacant Possession within [three] months of Closing of the Sale Agreement . Tenant shall forfeit its right to receive the $100,000 payment and shall nevertheless be obligated to promptly deliver Vacant Possession."

There is no factual dispute that the closing of the Sale Agreement took place on April 26, 2001.

Taking the evidence in the light most favorable to defendant Equitable Life, the record reflects that a Orazio D. Crisalli, an employee of Jones Lang LaSalle Americas, Inc. [property manager for the Fayetteville Mall on behalf of Equitable] prepared a letter dated April 23, 2001 which, in pertinent part, stated as follows:

" . effective May 1, 2001 Jones Lang LaSalle Americas, Inc. a/a/f The Equitable Life Assurance Society of the United States (The Equitable) will no longer manage and lease the Fayetteville Mall and "The Equitable" will transfer ownership to Cor ...


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