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DOCKET NO.: FBT-CV22-6114270-S : SUPERIOR COURT
PHIL’s GRILL, LLC : J.D. OF FAIRFIELD
Vv : AT BRIDGEPORT
NOROTON HEIGHTS SHOPPING CENTER,
INC. and NOROTON HEIGHTS &
COMPANY, LLC JUNE 2, 2023
PLAINTIFE’S OBJECTION TO DEFENDANTS’ MOTION FOR JUDGMENT
Plaintiff PHIL’s GRILL, LLC, respectfully files Plaintiff's Objection to Defendants’
Motion For Judgment.
I FACTS:
1 Plaintiff filed a Revised and Amended Complaint dated August 25, 2022. Count
Two alleged CUTPA violations and Count Three Breach of the Covenant of Good Faith and Fair
Dealing.
2 Defendants filed a Motion to Strike Counts Two and Three for legally
insufficiency for failing to allege facts establishing a CUTPa violation and bad faith.
3 In its Order (Doc.#134.10) the Court granted defendants Motion to Strike Count
Two citing that the plaintiff has not alleged aggravating circumstances sufficient to support its
CUTPA claim and further granted defendants Motion to Strike Count Three citing “To prevail on
a claim for the breach of the implied covenant of good faith and fair dealing, a complaint must
“allege a specific act that was performed purposefully, with a sinister intent pane and “The lynchpin
of a bad faith claim is a state of mind characterized by an intent to mislead or deceive or
defraud.”
4. Plaintiff filed a substituted Complaint (Doc.#151) and a Notice of Portions of the
Substituted Complaint as Amended (Doc.#152) for the purposes of curing the deficient pleading
(a copy of which is hereto annexed). The amended and substituted language as to Count Two
sounding in a violation of CUTPA in concert with the concise statement of facts alleged therein
stated in relevant part:
“13. Notwithstanding, the Landlord, in order to save approximately
$3,400,000.00 contrived a malicious, intentional, willful, immoral, unethical,
and unscrupulous plan to oust the plaintiff from its leased premises with
eleven years remaining on the Lease without compensating the plaintiff in
clear violation of Section 39 of the Lease thereby depriving the plaintiff of the
remaining benefits of its leaschold interest in the demised premises as
follows:
a, Jn March of 2018, James Calcagnini, in response to prior email
communications with Christian Bangert, the commercial realtor for NHSC’s
redevelopment project, agent for Landlord, and primary contact with the tenants
on behalf of NHSC, regarding a meeting to further discuss a proposed unbuilt
Substitute Premises pursuant to Section 39 of the Lease, emailed Christian
Bangert that “i am currently out of town and won’t get back until the 7th” because
he was in Texas and would not return until April 7, 2018.
b In furtherance of the Landlord’s malicious, intentional, willful,
immoral, unethical, and unscrupulous plan to wrongfully oust the plaintiff
from its leased premises prior to the termination of its Lease, James Palmer,
a principal and agent of NHSC, with Plaintiff's legal counsel, maliciously,
intentionally, and willfully wrote a letter dated April 4, 2018 (“Notice of
Substitution”) which stated in part,
“This letter shall serve as formal notice to you of Landlord’s election to
require you to vacate and surrender your current leased space and the substitution
of other reasonably similar space in the redeveloped Shopping Center as your new
lease premises...Please confirm in writing no later than April 19, 2018, that such
Substitute Premises is acceptable for you to relocate Jimmy’s Southside Tavern
to. If we do not hear from you by the above referenced date, we will assume that
you are not willing to relocate to such space.”...
29. Defendant’s aforesaid conduct was a malicious, intentional and
willful attempt to wrongfully terminate the Tenant’s Lease in order to save
approximately $3,400,000.00 and not compensate the Tenant for voluntarily
terminating the Lease before it expired, constituted unfair and/or deceptive
2
practices within the meaning of Connecticut General Statutes §42a-110b(a) in the
conduct of the trade or commerce, in that defendant’s acts and conduct violates
or offends public policy, was malicious, intentional, willful, immoral,
unethical, and unscrupulous, all for aggrandizement of the Landlord and/or
was substantially injurious to consumers, or other businesspersons including
the Tenant,
30. The acts and conduct of the defendant described above were
intentionally and willfully calculated to deprive the plaintiff of the remaining
benefits of its leasehold interest in the demised premises and deprive the
plaintiff
of the benefits to which it was entitled unde. the Lease all to the financial
benefit of the defendant and constituted a violation of Connecticut General
Statutes §42a-110 et seq.
5 The amended and substituted language as to Count Three sounding in a
violation of the Covenant of Good Faith and Fair Dealing (Bad Faith) in concert with the
preceding concise statement of facts pleaded therein stated in relevant part:
b. In furtherance of the Landlord’s malicious, intentional, willful,
dishonest, and sinister plan to wrongfully oust the plaintiff from its leased
premises prior to the termination of its Lease in order to avoid compensating
the Tenant for it remaining interest and benefits in the Lease and for the
Landlord to save approximately $3,400,000.00 dollars in the renovation of
the shopping center, James Palmer, a principal and agent of NHSC, with
Plaintiff's legal counsel, maliciously, intentionally, willfully, and dishonestly
wrote a letter dated April 4, 2018 (“Notice of Substitution”) which stated in
part,
“This letter shall serve as formal notice to you of Landlord’s election to
require you to vacate and surrender your current leased space and the
substitution of other reasonably similar space in the redeveloped Shopping
Center as your new lease premises...Please confirm in writing no later
than April 19, 2018, that such Substitute Premises is acceptable for you to
relocate Jimmy's Southside Tavern to. If we do not hear from you by the
above referenced date, we will assume that you are not willing to relocate
to such space.”
18. Thereafter, in furtherance and support of the malicious,
intentional, willful, and dishonest plan to wrongfully oust the tenant from the
premises before the termination of its Lease in order to avoid compensating
the Tenant for it remaining interest and benefits in the Lease if the Tenant
chose to vacate the premises voluntarily and to save approximately
$3,400,000.00 dollars in the renovation of the shopping center, the Landlord
met with the Darien Planning & Zoning Commission meeting on July 30, 2019
and informed the commission that the project would no longer be done in phases
and the three (3) buildings would now be demolished all at once. The
Commission unanimously approved the plan aid stated in a letter, “We
understand that it is now the intention of Noroton Heights Shopping Center Inc. to
complete the redevelopment of the subject property in a single phase, rather than
in the multiple phases originally approved.”
20. In furtherance of said dishonest and sinister plan, the Landlord
served the Tenant with a Notice to Quit on or about August 30, 2019, which
stated the reason for said termination as “they violated an express stipulation
of the lease”.
29. Defendant’s aforesaid conduct including but not limited to the
alleged delivery of a defective Notice of Substitution to an address which was
not designated in the Lease and on date when the Landlord knew that Mr.
Calcagnini would be not be present in a malicious, intentional, willful, and
dishonest attempt to wrongfully terminate the Tenant’s Lease in order to
ave approximately $3,400,000.00, injured the plaintiff’s right to receive
some or all of the benefits under the Lease; and injured the plaintiff’s right
to receive benefits it reasonably expected to receive under the Lease, as a
result of the Landiords refusal to fulfill some duty or some contractual
obligation, was not prompted by an honest mistake as to the Landlord’s
rights or duties, but was motivated by an interested and sinister motive of the
Landlord.
30. The acts and conduct of the defendant described above was a
malicious, intentional, willful, dishonest, and sinister plan contrived by the
Landlord for the dishonest purpose of saving approximately $3,400,000.00
and was intentionally and willfully calculated to deprive the plaintiff of the
remaining benefits of its leasehold interest in the demised premises and
deprive the plaintiff of the benefits to which it was entitled under the Lease
all to the financial detriment of the plaintiff.
31. As a result, the defendant, NOROTON HEIGHTS SHOPPING
CENTER, INC., by its wrongful conduct has maliciously, intentionally,
willfully, and dishonestly breached its implied covenant to deal fairly and in
good faith with the plaintiff, and deprived the plaintiff of the reasonably
expected remaining benefits of its leasehold interest in the Demised Premises
and the plaintiff and has been damaged as a result thereto.
IL ARGUMENT
A. The Substituted Complaint Cures the Deficiencies Cited by the Court in Ruling
upon Defendant’s Motion to Strike COUNT TWO of the Amended and Revised
Complaint
The Motion for Judgment before the Court is merely an attempt to circumvent the
necessity to strike the amended language of the substituted Complaint which cures all
deficiencies in the original pleading. The original Second Amended Complaint incorporated by
reference the concise statement of material facts supporting plaintiff's claim for a breach of
contract into Counts One and Two and thereafter declared that they were variously wilful,
intentional and/or malicious, relying upon an inference that the underlying concise statement of
material facts clearly established a violation of CUTPA and Bad Faith.
The concise statement of material facts did not change from the Revised and Amended
Complaint dated August 25, 2022 to the Substituted Complaint (Doc.#151). However, as to the
CUTPA claim, the plaintiff
did not incorporate by reference or “cut and paste” the allegations of
Count One alleging Breach of Contract but, instead, pleaded the existing facts in Count Two of
the Substituted Complaint in a more particular manner whereby the Court does not have to infer
a violation of CUTPA based on the facts, but rather clearly expresses that the defendants did not
mistakenly or negligently terminate the lease with eleven years remaining and not in default but,
rather, contrived a plan to maliciously, intentionally, and willfully oust the plaintiff from its
leased premises with eleven years left on its lease without compensating the plaintiff thereby
depriving the plaintiff of the remaining benefits of its leasehold interest in the demised premises
and self-aggrandizing itself in the amount of approximately $3.4 million together with those
elements necessary to satisfy the “Cigarette Rule” which were present in the original pleading
which allege that the defendants engaged in activity which was immoral, unethical, oppressive
and unscrupulous thereby causing harm to plaintiff tenant.
Connecticut Practice Book sec. 10(44) states in relevant part that “Within fifteen days
after the granting of any motion to strike, the party whose pleading has been stricken may file a
new pleading.”. Said rule goes on to state, “,..and the party whose ...count thereof has been so
stricken fails to file a new pleading within that fifteen day period, the judicial authority may,
upon motion, enter judgment against said party on said stricken...count thereof.” The plaintiff
filed a substitute pleading with fifteen days of the Courts ruling striking Counts Two and Three
of the Amended Revised Complaint and fully complied with Connecticut Practice Book sec.
10(44). Therefore, the defendant’s motion for judgment is not appropriate. The Connecticut law
regarding a motion a Strike is the appropriate vehicle to contest the sufficiency of the Substitute
Complaint and the changes therein must be considered by the Court, otherwise, the right to file a
" .. [if facts provable in
Substitute pleading after a pleading is stricken is effectively denied.
the [substituted] complaint would support a cause of action, the motion fo strike must be denied
... Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be
expressly alleged ... It is fundamental that in determining the sufficiency of a complaint
challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily
implied from the allegations are taken as admitted ... Indeed, pleadings must be construed
broadly and realistically, rather than narrowly and technically." (Internal quotation marks
omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342,
350, 71 A.3d 480 (2013). "If any facts provable under the express and implied allegations in the
plaintiff's complaint support a cause of action ... the complaint is not vulnerable to a motion to
strike." Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d | (1991).
“,.. a violation of CUTPA may be established by showing either an actual deceptive
practice ... or a practice amounting to a violation of public policy." (Internal quotation marks
omitted.) Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 413, 867 A.2d 841
(2005), The Substituted Complaint cures the perceived defects originally determined by this
court and sufficiently alleges the defendant’s actions were purposeful, harmful, and done with an
evil motive to deprive the plaintiff of the remaining benefits of its Jeasehold interest in the
demised premises for the sole purpose of profiting from its plan to save approximately $3.4
million. Corner House Condominium Association v. State Farm & Casualty Co. (Conn.
Super. 2018)
“Depending upon the nature of the assertions, however, the same facts that establish a
breach of contract claim may be sufficient to establish a CUTPA violation. That is generally so
when the aggravating factors present constitute more than a failure to deliver on a promise."
(Internal quotation marks omitted.) Banknorth, N.A. v. Blackrock Realty, 2010 Conn. Super.
LEXIS 861
The substituted language in Count Two of the Substituted Complaint clearly and
succinctly lays out a plan which offends public policy as it has been established by statutes, the
common law, or otherwise, is immoral, unethical, oppressive, or unscrupulous, and causes
substantial injury to consumers. The allegations in COUNT TWO of the Substituted Complaint
satisfy the statutory requirements and case law supporting a valid claim for a violation of
CUTPA and have cured any deficiencies cited by the Court in ruling upon defendant’s Motion to
Strike COUNT TWO of the Amended and Revised complaint.
B. The Substituted Complaint Cures The Deficiencies Cited by the Court in ruling upon
Defendant’s Motion to Strike Count Three of the Amended and Revised Complaint
As cited above, the plaiatiff fully complied with Connecticut Practice Book sec, 10(44)
Therefore, the defendant’s motion for judgment is not appropriate.
With respect to the actual changes made in the Substituted Complaint, "[A]n action for
breach of the covenant of good faith and fair dealing requires proof of three essential elements,
which [the] plaintiff must duly plead: first, that the plaintiff and the defendant were parties to a
contract under which the plaintiff reasonably expected to receive certain benefits; second, that
the defendant engaged in conduct that injured the plaintiff's right to receive some or all of those
benefits; and third, that when committing the acts by which it injured the plaintiff's right to
receive benefits it reasonably expected to receive under the contract, the defendant was acting in
bad faith." Tarabek v. Hartford Ins. Co., Superior Court, J.D. of New London, Docket No.
561153 (8/26/02, Hurley, J.T.R.); Marder vy. Nationwide Ins. Co., Superior Court, J.D. of New
Haven, Docket No. CV-13-6038355-S (11/12/15, Wilson, J.) [61 Conn.L.Rptr. 269]. Kellogg v.
Middlesex Mutual Assurance Co. (Conn. Super. 2018), Docket No. FSTCV166027990S(June 1,
2018, Jacobs, J.) "Bad faith in general implies...a neglect or refusal to fulfill some duty or some
contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by
some interested or sinister motive ... Bad faith means more than mere negligence; it involves a
dishonest purpose." (Internal quotation marks omitted.) Capstone Building Corp. v. American
Motorists Ins. Co., 308 Conn. 760, 794 (2013); Kellogg v. Middlesex Mutual Assurance Co,
(Conn. Super. 2018), Docket No. FSTCV166027990S(June 1, 2018, Jacobs, J.).
" | the following types [of bad faith] are among those which have been recognized in
judicial decisions: evasion of the spirit of the bargain. ..willful rendering of imperfect
performance... and interference with or failure to cooperate in the other party’s performance."
(Internal quotation marks omitted.) Elm Street Builders, Inc. v. Enterprise Park Condominium
A ssn., Inc., 63 Conn.App. 657, 667, 778 A.2d 237 (2001).
“In alleging a breach of the covenant of good faith and fair dealing, the courts have
required a plaintiff to allege sufficient facts or allegations from which one can make a
reasonable inference of sinister motive. Nevertheless, there must be allegations that the
defendant purposefully engaged in the conduct at issue.” See, e.g., Urban Apparel Plus, LLC v.
Sentinel Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV-13-6035293-S,
2013 WL 6171114 (October 31, 2013, Fischer, J.) (57 Conn.L.Rptr. 124, 126); Corner House
Condominium Association v. State Farm & Casualty Co, (Conn, Super. 2018)
Given that all weil-pleaded facts and those facts necessarily implied from the allegations
are taken as admitted, the plaintiff alleges that the acts and conduct of the defendant were a
malicious, intentional, willful, dishonest, and sinister plan contrived by the Landlord for the
dishonest purpose of saving approximately $3,400,000.00 and was intentionally and willfully
calculated to deprive the plaintiff of the remaining benefits of its leasehold interest in the
demised premises and deprive the plaintiff of the benefits to which it was entitled under the
Lease all to the financial detriment of the plaintiff.
The substituted language in Count Three of the Substituted Complaint clearly and
succinctly lays out an intentional, malicious and sinister plan by the defendants to harm the
plaintiff for its own benefit. The allegations in COUNT THREE of the Substituted Complaint
satisfy the statutory requirements and case law supporting a valid claim for a violation of the
Covenant of Good Faith and Fair Dealing and have cured any deficiencies cited by the Court in
ruling upon defendant’s Motion to Strike COUNT Three of the Amended and Revised
complaint.
Based on the foregoing, the plaintiff objects to the defendants Motion for Judgment as to
Counts Two and Three of plaintiffs Substituted Complaint as procedurally inappropriate and
substantively lacking in merit.
THE PLAINTIFF
PHIL’S GRILL, LLC
By Juris #305398
Scott C. DeLaura
Palumbo & DeLaura, LLC
528 Chapel Street
New Haven, CT 06511
Phone: 203.773.1113
Juris No. 415035
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EXULBLT A
DOCKET NO.: FBT-CV22-6114270-S : SUPERIOR COURT
PHIt’s GRILL, LLC + 3,0, OF FAIRFIELD
V. : AT BRIDGEPORT
NOROTON HEIGHTS SHOPPING CENTER,
INC, and NOROTON HEIGHTS &
COMPANY, LLC APRIL 21, 2023
NOTICE OF PORTIONS OF SUBSTITUTED COMPLAINT AS AMENDED
Pursuant to §10-59 of the Connecticut Practice Book, the plaintiff PHIL’s GRILL, LLC, the
following are the portions of the Revised and Amended Complaint dated August 25, 2021 which were
amended in the Substituted Complaint dated April 21, 2023:
COUNT TWO: (As to Violation C.G.S. §42a-110b, CUTPA)
1-8. Paragraphs 1 through 8 of COUNT ONE are hereby incorporated by reference and made
paragraphs 1 through 8 of this COUNT TWO.
9. Thereafter, the Landlord determined that by removing all the tenants and razing all the
buildings at once rather than doing the redevelopment project at Noroton Heights Shopping Center in
phases would save NHSC “Somewhere in the order of three million” dollars.
10. In addition, if the Tenant’s lease was terminated, the Landlord would not have to install
fixtures, improvements, and appurtenances of at least equal in kind and quality of those contained in
the demised premises into the Substitute Premises pursuant to the express requirements of paragraph
39(B) of the Lease. The expense to install fixtures, improvements, and appurtenances of at least equal
in kind and quality of those contained in the demised premises into the Substitute Premises pursuant to
the terms and conditions of paragraph 39(B) of the Lease was exnected "to be north of $400,000.00".
11. By virtue of the clear and unambiguous language of the Lease, the Landlord knew that
the plaintiff was legally entitled to occupy the premises through September 30, 2020 and as result of the
renewal options provided in section 40 of the Lease, the Tenant had the right to extend the Lease to
September 30, 2030.
12. As a result of the clear and unambiguous language of the Lease and the right of the
Tenant to occupy the premises through September 30, 2030, the Landlord was unable to raze all the
buildings at once rather than doing the redevelopment project at Noroton Heights Shopping Center in
phases because Section 39 of the Lease required that the Landlord to send a valid Notice of Substitution
to the Tenant and provide the Tenant with other reasonably similar space elsewhere in the Shopping
Center (the “Substitute Premises”) designated by the Landlord contained at least the same square foot
area as the Demised Premises containing fixtures, improvements, and appurtenances of at least equal in
kind and quality of those contained in the Demised Premises and to move the Tenant to that Substitute
Space within 15 days of receipt of a valid Notice of Substitution.
13. Notwithstanding, the Landlord, in order to save approximately $3,400,000.00 contrived
a malicious, intentional, willful, immoral, unethical, and unscrupulous plan to oust the plaintiff from its
leased premises with eleven years remaining on the Lease without compensating the plaintiff in clear
violation of Section 39 of the Lease thereby depriving the plaintiff of the remaining benefits of its
leasehold interest in the demised premises as follows:
a in March of 2018, James Calcagnini, in response to prior email communications
with Christian Bangert, the commercial realtor for NHSC’s redevelopment project, agent for
Landlord, and primary contact with the tenants on behalf of NHSC, regarding a meeting to
further discuss a proposed unbuilt Substitute Premises pursuant to Section 39 of the Lease,
emailed Christian Bangert that “Iam currently out of town and won't get back until the 7th”
because he was in Texas and would not return until April 7, 2018.
b in furtherance of the Landlord’s malicious, intentional, willful, immoral,
unethical, and unscrupulous plan to wrongfully oust the plaintiff fram its leased premises prior
to the termination of its Lease, James Palmer, a principal and agent of NHSC, with Plaintiff's
legal counsel, maliciously, intentionally, and willfully wrote a letter dated April 4, 2018 (“Notice
of Substitution”) which stated in part,
“This letter shall serve as formal notice to you of Landlord's election to require you to
vacate and surrender your current leased space and the substitution of other reasonably
similar space in the redeveloped Shopping Center as your new lease premises...Please
confirm in writing no later than April 19, 2018, that such S ubstitute Premises is acceptable
for you to relocate Jimmy’s Southside Tavern to. IF we do not hear from you by the above
referenced date, we will assume that you are not willing to relocate to such space.”
c. James Palmer and his legal counsel knew by a plain reading of Section 39 of the
Lease that said Notice of Substitution did not comply with Section 39 of the Lease regarding Relocation
in that:
1 There was no other reasonably similar space containing at least the
same square foot area as the Demised Premises elsewhere in the Shopping Center (the “Substitute
Premises”) with fixtures, improvements and appurtenances at least equal in kind and quality to those
contained in the Demised Premises at the time such Notice of Substitution was given by the Landlord;
and
ii. There was no requirement in Section 39 of the Lease that the had to
respond in writing within fifteen (15) days of receipt as to whether they would accept the proposed
unbuilt substitute premises, but rather, the Lease required that the Tenant, upon receipt of a valid
Notice of Substitution, had to vacate and surrender the Demised Premises and occupy the a proposed
fully substantially completed Substitute Premises no later than fifteen [15] days after the Landlord had
substantially completed any work to be performed in the Substitute Premises.
d On April 5, 2018, James Palmer allegedly expeditiously hand delivered the
Notice of Substitution to UPS to be delivered via overnight delivery on April 6, 2018, to 36 Plymouth
2
Road, Darien, Connecticut, the principal place of Residence of James Caicagnini, the sole owner of Phil's
Grill, LLC. The Notice of Substitution was intentionally and willfully allegedly delivered to Mr.
Calcagnini’s principal place of residence, at location and a date where the Landlord knew or should have
known that Mr, Calcagnini would not be present and which was not a mandatory designated location for
Notice under the Lease. One of the designated locations for Notice under the Lease was the Demised
Premises which was open and staffed on the purported date of delivery.
14, Mr. Calcagnini did not receive, sign for, or see any Notice of Substitution at his home
when he returned from Texas late in the evening of April 7, 2018, and was not aware of any Notice of
Substitution until July 2, 2019.
15. There was no notice of a delivery of said Notice of Substitution to Mr. Calcagnini nor any
discussion between Mr, Calcagnini or any of his agents, servants, or employees with the Landlord or any
agents, servants, or employees of the Landlord regarding the Notice of Substitution or any consequence
of failing to respond in writing to the Notice of Substitution by April 19, 2018 until July 2, 2019.
16. The Tenant continued to pay its rent and was in iull compliance with the Lease during
the Tenant’s remaining period of occupancy of the Premises.
17. Approximately 15 months later, James Palmer met with James Calcagnini on July 2,
2019, and handed Mr. Calcagnini “bullet points” which stated, in part, that “James waives his relocation
rights by not responding to April 4th, 2018, letter sent by Jim via UPS showing proposed substitute
space”.
18. Thereafter, in furtherance and support of said malicious, intentional, willful, immoral,
unethical, and unscrupulous plan to wrongfully oust the tenant from the premises before the
termination of its Lease, the Landlord met with the Darien Planning & Zoning Commission meeting on
July 30, 2019 and informed the commission that the project would no longer be done in phases and the
three (3) buildings would now be demolished all at once. The Commission unanimously approved the
plan and stated in a letter, “We understand that it is now the intention of Noroton Heights Shopping
Center Inc. to complete the redevelopment of the subject property in a single phase, rather than in the
multiple phases originally approved.”
ig, One day after the Darien Planning & Zoning Commission meeting approved the plan to
demolish all the buildings at once instead of phases, James Palmer, a principal and agent of NHSC, hand
delivered a Termination of Lease letter to the Restaurant Manager on July 31, 2019 at the Demised
Premises, as opposed to the principal place of residence of James Calcagnini as was alleged with respect
to the Notice of Substitution.
20. Thereafter, in furtherance of the said malicious, intentional, willful, immoral, unethical, and
unscrupulous plan to wrongfully oust the tenant from the premises before the termination of its Lease,
the Landlord served the Tenant with a Notice to Quit on or about August 30, 2019, the absolute
minimum amount of time after Notice of Termination was served pursuant to the terms of conditions of
the Lease, which stated the reason for said termination as “they violated an express stipulation of the
lease”,
21. Landlord commenced a Summary Process action (“Summary Pracess Action”) against
Tenant in the Judicial District of Stamford/Norwalk, Norwalk Housing Session on or about September 23,
2019, and was assigned the Docket No.: NWH-CV19-6005175.
22. On or about March 11, 2020, judgment for immediate possession was granted to the
Landlord by the Housing Court.
23. On or about March 16, 2020, Tenant filed an appeal of the decision of the Housing Court
in the State of Connecticut Appellate Court and was assigned the Docket No.: AC 44042.
24, On or about March 20, 2020, defendant NHSC filed a Plaintiffs Motion To Set Bond
stating in relevant part,
“This Court [Judicial District of Stamford/Norwalk, Norwalk Housing Session], in its
memorandum of decision made a finding of fact that the costs to the plaintiff from the
defendani’s continued occupancy exceed one million dollars.”
And,
“For the foregoing reasons, the plaintiff moves that this court set bond with surety
in the amount of $1,000,000 as a condition of the continuation of this appeal.”
25. Notwithstanding the plaintiff's disagreement with the trial Court’s finding, as a result of
the threatened exposure to Tenant for its continued occupancy exceeding one million dollars, the
request to set a One Million ($1,000,000.00) Dollar Bond to the same Court which made the above
findings of fact, and the probable burden of posting a One Million ($1,000,000.00) Dollar Bond during
the pendency of the appeal, on or about March 31, 2020, the Tenant surrendered the Demised Premises
in compliance with the Trial Court’s judgment for immediate possession.
26. Gn or about September 7, 2021, the State of Cor necticut Appellate Court rendered a
decision holding that “The Judgment is reversed, and the case is remanded with direction to render
judgment for the defendant.”.
27. On or about November 9, 2021, The Supreme Court of the State of Connecticut denied
Noroton Heights Shopping Center, Inc.’s Petition for Certification to Appeal.
28. The trial court entered judgment in favor of the Tenant on January 13, 2022.
29. Defendant's aforesaid conduct was a malicious, intentional and willful attempt to
wrongfully terminate the Tenant’s Lease in order to save approximately $3,400,000.00 and not
compensate the Tenant for voluntarily terminating the Lease before it expired, constituted unfair and/or
deceptive practices within the meaning of Connecticut General Statutes §42a-110b{a) in the conduct of
the trade or commerce, in that defendant's acts and conduct violates or offends public policy, was
malicious, intentional, willful, immoral, unethical, and unscrupulous, all for aggrandizement of the
Landlord and/or was substantially injurious to consumers, or other businesspersons including the
Tenant.
30. The acts and conduct of the defendant described above were intentionally and willfully
calculated to deprive the plaintiff of the remaining benefits of its leasehold interest in the demised
4
premises and deprive the plaintiff of the benefits to which it was entitled under the Lease all to the
financial benefit of the defendant and constituted a violation of Connecticut General Statutes §42a-110
et seq.
31. Defendant’s conduct caused substantial injury to plaintiff, which could not be reasonably
avoided and is not outweighed by any countervailing benefit to other businesspersons.
32. Asa direct and proximate result of defendant’s violations of CUTPA, plaintiff has
suffered an ascertainable loss of money.
OUNT THREE: (Bad Faith)
1-10. Paragraphs 1 through 10 of COUNT ONE are hereby incorporated by reference and made
paragraphs 1 through 10 of this COUNT THREE.
11. By virtue of the clear and unambiguous language of the Lease, the reasonably Landlord
knew that the Tenant was legally entitled to occupy the Premises through September 30, 2020 and, as
result of the renewal options provided in Section 40 of the Lease, the Tenant had the right to extend the
Lease to September 30, 2030.
12 By virtue of the Lease, the Tenant reasonably expected the contractual right to occupy
the premises through September 30, 2020 and as result of the reivewal options provided in section 40 of
the Lease, the Tenant reasonably expected to have the right to extend the Lease to September 30, 2030.
13. Asa result of the clear and unambiguous language of the Lease and the right of the
Tenant to occupy the premises through September 30, 2030, the Landlord was unable to raze all the
buildings at once rather than doing the redevelopment project at Noroton Heights Shopping Center in
phases because Section 39 of the Lease required that the Landlord to send a valid Notice of Substitution
to the Tenant and provide the Tenant with other reasonably similar space elsewhere in the Shopping
Center (the “Substitute Premises”) designated by the Landlord contained at least the same square foot
area as the Demised Premises containing fixtures, improvements, and appurtenances of at least equal in
kind and quality of those contained in the Demised Premises and to move the Tenant to that Substitute
Space within 15 days of receipt of a valid Notice of Substitution.
13. The Landlord, in order to save approximately $3,400,000.00 without compensating the
plaintiff to voluntarily vacate the Premises before the expiration of the term of the Lease, contrived a
malicious, intentional, willful, dishonest, and sinister plan to oust the plaintiff from its leased premises
with eleven years left on the Lease as follows:
a In March of 2018, James Calcagnini, in response to prior email communications
with Christian Bangert, the commercial realtor for NHSC’s redevelopment project, agent for
Landlord, and primary contact with the tenants on behali of NHSC, regarding a meeting to
discuss a proposed, as of then, unbuilt Substitute Premises pursuant to Section 39 of the Lease,
emailed Christian Bangert that “I ar currently out of town and won't get back until the 7th”
because he was in Texas and would not return until April 7, 2018.
b In furtherance of the Landlord’s malicious, intentional, willful, dishonest, and
sinister plan to wrongfully oust the plaintiff from its leased premises prior to the termination of
its Lease in order to avoid compensating the Tenant for it remaining interest and benefits in the
5
Lease and for the Landlord to save approximately $3,400,000.00 dollars in the renovation of the
shopping center, James Palmer, a principal and agent of NHSC, with Plaintiff's legal counsel,
maliciously, intentionally, willfully, and dishonestly wrote a letter dated April 4, 2018 (“Notice of
Substitution”) which stated in part,
"This letter shall serve as formal notice to you of Landlord's election to require you to
vacate and surrender your current leased space and the substitution of other reasonably
similar space in the redeveloped Shopping Center as your new lease premises...Please
confirm in writing no later than April 19, 2018, that such Substitute Premises is acceptable
for you to relocate Jimmy’s Southside Tavern to, If we do not hear from you by the above
referenced date, we will assume that you are not willing io relocate to such space.”
c James Palmer and his legal counsel knew by a plain reading of Section 39 of the
Lease that said Notice of Substitution did not comply with Section 39 of the Lease regarding Relocation
in that:
i There was no other reasonably similar space containing at least the
same square foot area as the Demised Premises elsewhere in the Shopping Center (the “Substitute
Premises”) with fixtures, improvements and appurtenances at least equal in kind and quality to those
contained in the Demised Premises at the time such Notice of Substitution was allegedly delivered to
Tenant which the Tenant could move into within 15 days of receipt of a Notice of Substitution; and
ii. There was no requirement in Section 39 of the Lease that the tenant,
upon receipt of a Notice of Substitution had to respond in writing within fifteen (15) days of receipt as to
whether they would accept unbuilt praposed substitute premises, but rather, the Lease clearly and
unambiguously required that upon receipt of a valid Notice of Substitution, the tenant was only required
to vacate and surrender the Demised Premises and occupy the Substitute Premises no later than fifteen
[15] days after the Landlord had substantially completed any work to be performed in the Substitute
Premises.
d. On April 5, 2018, James Palmer allegedly hand delivered the Notice of
Substitution to UPS to be delivered via overnight delivery on April 6, 2018, to 36 Plymouth Road, Darien,
Connecticut, the principal place of Residence of James Calcagnini, the sole owner of Phil’s Grill, LLC, The
invalid Notice of Substitution was intentionally and willfully allegedly delivered to Mr. Calcagnini’s
principal place of residence, at location and a date where the Landlord knew or should have known Mr.
Calcagnini would not be present and which was not a designated location for Notice under the Lease.
One of the designated locations for Notice under the Lease was the Demised Premises which was open
and staffed on the purported date of delivery and could have been received and signed for.
14, Mr. Calcagnini did not receive, sign for, or see any Notice of Substitution at his principal
place of residence when he returned from Texas late in the evening of April 7, 2018, or thereafter until
July 2, 2019.
15. There was no notice of a delivery of a Notice of Substitution or any discussion between
Mr. Calcagnini or any of his agents, servants, or employees with any agents, servants, or employees of
the Landlord regarding the Notice of Substitution or any consequence of failing to respond in writing by
6
April 19, 2018 to the Notice of Substitution purportedly delivered to Mr. Calcagnini’ s principle place of
residence until July 2, 2019.
16. The plaintiff continued to pay its full rent on eact, subsequent and successive month
thereafter and was in full compliance with the Lease during the Tenant’s entire period of occupancy of
the Premises and was never notified of any default of any express provision and/or stipulation of the
Lease.
17. Approximately 15 months later, James Palmer met with James Calcagnini on July 2,
2019, and handed Mr. Calcagnini “bullet points” which dishonestly stated, in part, that “James waives
his relocation rights by not responding to April 4th, 2018 Letter sent by Jim via UPS showing proposed
substitute space”.
18. Thereafter, in furtherance and support of the malicious, intentional, willful, and
dishonest plan to wrongfully oust the tenant from the premises before the termination of its Lease in
order to avoid compensating the Tenant for it remaining interest and benefits in the Lease if the Tenant
chose to vacate the premises voluntarily and to save approximately $3,400,000.00 dollars in the
renovation of the shopping center, the Landlord met with the Darien Planning & Zoning Commission
meeting on July 30, 2019 and informed the commission that the project would no longer be done in
phases and the three (3) buildings would now be demolished all at once. The Commission unanimously
approved the plan and stated in a letter, “We understand that it is now the intention of Noroton Heights
Shopping Center Inc. to complete the redevelopmentof the subject property ina single phase, rather
than in the multiple phases originally approved.”
is. One (1) day after the Darien Planning & Zoning Commission meeting approved the plan
to demolish all the buildings at once instead of phases, James Palmer, a principal and agent of NHSC,
hand delivered a Termination of Lease letter to the Restaurant Manager on July 31, 2019 at the Demised
Premises, as opposed to the principal place of residence of James Calcagnini as was alleged with respect
to the delivery of the Notice of Substitution.
20. In furtherance of said dishonest and sinister plan, the Landlord served the Tenant with a
Notice to Quit on or about August 30, 2019, which stated the reason for said termination as “they
violated an express stipulation of the lease”.
21. Landlord commenced a Summary Process action (“Summary Process Action”) against
Tenant in the Judicial District of Stamford/Norwalk, Norwalk Housing Session on or about September 23,
2019, and was assigned the Docket No.: NWH-CV19-6005175.
22. On or about March 14, 2020, judgment for immediate possession was granted to the
Landlord by the Housing Court.
23, On or about March 16, 2020, Tenant filed an appeal of the decision of the Housing Court
in the State of Connecticut Appellate Court and was assigned the Docket No.: AC 44042,
24. On or about March 20, 2020, defendant NHSC filed a Plaintiff's Motion To Set Bond
stating in relevant part,
“This Court [Judicial District of Stamford/Norwalk, Norwalk Housing Session], in its
memorandum of decision made a finding of fact that the costs to the plaintiff from the
defendant's continued occupancy exceed one million dollars.”
And,
“For the foregoing reasons, the plaintiff moves that this court set bond with surety
in the amount of $1,000,000 as a condition of the continuation of this appeal.”
25, Notwithstanding the plaintiff's disagreement with the trial Court's finding, as a result of
the threatened exposure to Tenant for its continued occupancy exceeding one million dollars, the
request to set a One Million ($1,000,000.00) Dollar Bond to the same Court which made the above
findings of fact, and the probable burden of posting a One Million ($1,000,000.00) Dollar Bond during
the pendency of the appeal, on or about March 31, 2020, the Tenant surrendered the Demised Premises
in compliance with the Trial Court’s judgment for immediate possession.
26. On or about September 7, 2021, the State of Connecticut Appellate Court rendered a
decision holding that “The Judgment is reversed, and the case is remanded with direction to render
judgment for the defendant.”.
27, On or about November 9, 2021, The Supreme Court of the State of Connecticut denied
Noroton Heights Shopping Center, inc.’s Petition for Certification to Appeal.
28. The trial court entered judgment in favor of the Tenant on January 13, 2022.
29. Defendant's aforesaid conduct including but not limited to the alleged delivery of a
defective Notice of Substitution to an address which was not designated in the Lease and on date when
the Landlord knew that Mr. Calcagnini would be not be present in a malicious, intentional, willful, and
dishonest attempt to wrongfully terminate the Tenant’s Lease in order to save approximately
$3,400,000.00, injured the plaintiff's right to receive some or all of the benefits under the Lease; and
injured the plaintiff's right to receive benefits it reasonably expected to receive under the Lease, as a
result of the Landlords refusal to fulflil some duty or some contractual obligation, was not prompted by
an honest mistake as to the Landlord’s rights or duties, but was motivated by an interested and sinister
motive of the Landlord.
30. The acts and conduct of the defendant describea above was a malicious, intentional,
willful, dishonest, and sinister plan contrived by the Landlord for the dishonest purpose of saving
approximately $3,400,000.00 and was intentionally and willfully caiculated to deprive the plaintiff of the
remaining benefits of its leasehold interest in the demised premises and deprive the plaintiff of the
benefits to which it was entitled under the Lease all to the financial detriment of the plaintiff.
31. As a result, the defendant, NOROTON HEIGHTS SHOPPING CENTER, INC., by its wrongful
conduct has maliciously, intentionally, willfully, and dishonestly breached Its implied covenant to deal
fairly and in good faith with the plaintiff, and deprived the plaintiff of the reasonably expected
remaining benefits of its leasehold interest in the Demised Premises and the plaintiff and has been
damaged as a result thereto.
THE PLAINTIEF-- Ss?
“BY” era ae
Scott C. Delaura
PALUMBO & DeLAURA, LLC
528 Chapel Street
New laven, CT 06511
(203) 773-1413
Juris #415035
CERTIFICATION
This shall certify that a copy of the above was electronically delivered on the date hereof
to all counsel of record and that written consent for electronic delivery was received from all
counsel of record who were electronically served.
Abram Heisler
Attorney at Law
16 River Street, second floor
Norwalk, CT 06850
LITCHFIELD CAVO (416477)
82 HOPMEADOW STREET
SUITE 210
SIMSBURY, CT 06089
Juris # 305398
Scott C. DeLaura
16
Preview
DOCKET NO.: FBT-CV22-6114270-S : SUPERIOR COURT PHIL’s GRILL, LLC : J.D. OF FAIRFIELD Vv : AT BRIDGEPORT NOROTON HEIGHTS SHOPPING CENTER, INC. and NOROTON HEIGHTS & COMPANY, LLC JUNE 2, 2023 PLAINTIFE’S OBJECTION TO DEFENDANTS’ MOTION FOR JUDGMENT Plaintiff PHIL’s GRILL, LLC, respectfully files Plaintiff's Objection to Defendants’ Motion For Judgment. I FACTS: 1 Plaintiff filed a Revised and Amended Complaint dated August 25, 2022. Count Two alleged CUTPA violations and Count Three Breach of the Covenant of Good Faith and Fair Dealing. 2 Defendants filed a Motion to Strike Counts Two and Three for legally insufficiency for failing to allege facts establishing a CUTPa violation and bad faith. 3 In its Order (Doc.#134.10) the Court granted defendants Motion to Strike Count Two citing that the plaintiff has not alleged aggravating circumstances sufficient to support its CUTPA claim and further granted defendants Motion to Strike Count Three citing “To prevail on a claim for the breach of the implied covenant of good faith and fair dealing, a complaint must “allege a specific act that was performed purposefully, with a sinister intent pane and “The lynchpin of a bad faith claim is a state of mind characterized by an intent to mislead or deceive or defraud.” 4. Plaintiff filed a substituted Complaint (Doc.#151) and a Notice of Portions of the Substituted Complaint as Amended (Doc.#152) for the purposes of curing the deficient pleading (a copy of which is hereto annexed). The amended and substituted language as to Count Two sounding in a violation of CUTPA in concert with the concise statement of facts alleged therein stated in relevant part: “13. Notwithstanding, the Landlord, in order to save approximately $3,400,000.00 contrived a malicious, intentional, willful, immoral, unethical, and unscrupulous plan to oust the plaintiff from its leased premises with eleven years remaining on the Lease without compensating the plaintiff in clear violation of Section 39 of the Lease thereby depriving the plaintiff of the remaining benefits of its leaschold interest in the demised premises as follows: a, Jn March of 2018, James Calcagnini, in response to prior email communications with Christian Bangert, the commercial realtor for NHSC’s redevelopment project, agent for Landlord, and primary contact with the tenants on behalf of NHSC, regarding a meeting to further discuss a proposed unbuilt Substitute Premises pursuant to Section 39 of the Lease, emailed Christian Bangert that “i am currently out of town and won’t get back until the 7th” because he was in Texas and would not return until April 7, 2018. b In furtherance of the Landlord’s malicious, intentional, willful, immoral, unethical, and unscrupulous plan to wrongfully oust the plaintiff from its leased premises prior to the termination of its Lease, James Palmer, a principal and agent of NHSC, with Plaintiff's legal counsel, maliciously, intentionally, and willfully wrote a letter dated April 4, 2018 (“Notice of Substitution”) which stated in part, “This letter shall serve as formal notice to you of Landlord’s election to require you to vacate and surrender your current leased space and the substitution of other reasonably similar space in the redeveloped Shopping Center as your new lease premises...Please confirm in writing no later than April 19, 2018, that such Substitute Premises is acceptable for you to relocate Jimmy’s Southside Tavern to. If we do not hear from you by the above referenced date, we will assume that you are not willing to relocate to such space.”... 29. Defendant’s aforesaid conduct was a malicious, intentional and willful attempt to wrongfully terminate the Tenant’s Lease in order to save approximately $3,400,000.00 and not compensate the Tenant for voluntarily terminating the Lease before it expired, constituted unfair and/or deceptive 2 practices within the meaning of Connecticut General Statutes §42a-110b(a) in the conduct of the trade or commerce, in that defendant’s acts and conduct violates or offends public policy, was malicious, intentional, willful, immoral, unethical, and unscrupulous, all for aggrandizement of the Landlord and/or was substantially injurious to consumers, or other businesspersons including the Tenant, 30. The acts and conduct of the defendant described above were intentionally and willfully calculated to deprive the plaintiff of the remaining benefits of its leasehold interest in the demised premises and deprive the plaintiff of the benefits to which it was entitled unde. the Lease all to the financial benefit of the defendant and constituted a violation of Connecticut General Statutes §42a-110 et seq. 5 The amended and substituted language as to Count Three sounding in a violation of the Covenant of Good Faith and Fair Dealing (Bad Faith) in concert with the preceding concise statement of facts pleaded therein stated in relevant part: b. In furtherance of the Landlord’s malicious, intentional, willful, dishonest, and sinister plan to wrongfully oust the plaintiff from its leased premises prior to the termination of its Lease in order to avoid compensating the Tenant for it remaining interest and benefits in the Lease and for the Landlord to save approximately $3,400,000.00 dollars in the renovation of the shopping center, James Palmer, a principal and agent of NHSC, with Plaintiff's legal counsel, maliciously, intentionally, willfully, and dishonestly wrote a letter dated April 4, 2018 (“Notice of Substitution”) which stated in part, “This letter shall serve as formal notice to you of Landlord’s election to require you to vacate and surrender your current leased space and the substitution of other reasonably similar space in the redeveloped Shopping Center as your new lease premises...Please confirm in writing no later than April 19, 2018, that such Substitute Premises is acceptable for you to relocate Jimmy's Southside Tavern to. If we do not hear from you by the above referenced date, we will assume that you are not willing to relocate to such space.” 18. Thereafter, in furtherance and support of the malicious, intentional, willful, and dishonest plan to wrongfully oust the tenant from the premises before the termination of its Lease in order to avoid compensating the Tenant for it remaining interest and benefits in the Lease if the Tenant chose to vacate the premises voluntarily and to save approximately $3,400,000.00 dollars in the renovation of the shopping center, the Landlord met with the Darien Planning & Zoning Commission meeting on July 30, 2019 and informed the commission that the project would no longer be done in phases and the three (3) buildings would now be demolished all at once. The Commission unanimously approved the plan aid stated in a letter, “We understand that it is now the intention of Noroton Heights Shopping Center Inc. to complete the redevelopment of the subject property in a single phase, rather than in the multiple phases originally approved.” 20. In furtherance of said dishonest and sinister plan, the Landlord served the Tenant with a Notice to Quit on or about August 30, 2019, which stated the reason for said termination as “they violated an express stipulation of the lease”. 29. Defendant’s aforesaid conduct including but not limited to the alleged delivery of a defective Notice of Substitution to an address which was not designated in the Lease and on date when the Landlord knew that Mr. Calcagnini would be not be present in a malicious, intentional, willful, and dishonest attempt to wrongfully terminate the Tenant’s Lease in order to ave approximately $3,400,000.00, injured the plaintiff’s right to receive some or all of the benefits under the Lease; and injured the plaintiff’s right to receive benefits it reasonably expected to receive under the Lease, as a result of the Landiords refusal to fulfill some duty or some contractual obligation, was not prompted by an honest mistake as to the Landlord’s rights or duties, but was motivated by an interested and sinister motive of the Landlord. 30. The acts and conduct of the defendant described above was a malicious, intentional, willful, dishonest, and sinister plan contrived by the Landlord for the dishonest purpose of saving approximately $3,400,000.00 and was intentionally and willfully calculated to deprive the plaintiff of the remaining benefits of its leasehold interest in the demised premises and deprive the plaintiff of the benefits to which it was entitled under the Lease all to the financial detriment of the plaintiff. 31. As a result, the defendant, NOROTON HEIGHTS SHOPPING CENTER, INC., by its wrongful conduct has maliciously, intentionally, willfully, and dishonestly breached its implied covenant to deal fairly and in good faith with the plaintiff, and deprived the plaintiff of the reasonably expected remaining benefits of its leasehold interest in the Demised Premises and the plaintiff and has been damaged as a result thereto. IL ARGUMENT A. The Substituted Complaint Cures the Deficiencies Cited by the Court in Ruling upon Defendant’s Motion to Strike COUNT TWO of the Amended and Revised Complaint The Motion for Judgment before the Court is merely an attempt to circumvent the necessity to strike the amended language of the substituted Complaint which cures all deficiencies in the original pleading. The original Second Amended Complaint incorporated by reference the concise statement of material facts supporting plaintiff's claim for a breach of contract into Counts One and Two and thereafter declared that they were variously wilful, intentional and/or malicious, relying upon an inference that the underlying concise statement of material facts clearly established a violation of CUTPA and Bad Faith. The concise statement of material facts did not change from the Revised and Amended Complaint dated August 25, 2022 to the Substituted Complaint (Doc.#151). However, as to the CUTPA claim, the plaintiff did not incorporate by reference or “cut and paste” the allegations of Count One alleging Breach of Contract but, instead, pleaded the existing facts in Count Two of the Substituted Complaint in a more particular manner whereby the Court does not have to infer a violation of CUTPA based on the facts, but rather clearly expresses that the defendants did not mistakenly or negligently terminate the lease with eleven years remaining and not in default but, rather, contrived a plan to maliciously, intentionally, and willfully oust the plaintiff from its leased premises with eleven years left on its lease without compensating the plaintiff thereby depriving the plaintiff of the remaining benefits of its leasehold interest in the demised premises and self-aggrandizing itself in the amount of approximately $3.4 million together with those elements necessary to satisfy the “Cigarette Rule” which were present in the original pleading which allege that the defendants engaged in activity which was immoral, unethical, oppressive and unscrupulous thereby causing harm to plaintiff tenant. Connecticut Practice Book sec. 10(44) states in relevant part that “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading.”. Said rule goes on to state, “,..and the party whose ...count thereof has been so stricken fails to file a new pleading within that fifteen day period, the judicial authority may, upon motion, enter judgment against said party on said stricken...count thereof.” The plaintiff filed a substitute pleading with fifteen days of the Courts ruling striking Counts Two and Three of the Amended Revised Complaint and fully complied with Connecticut Practice Book sec. 10(44). Therefore, the defendant’s motion for judgment is not appropriate. The Connecticut law regarding a motion a Strike is the appropriate vehicle to contest the sufficiency of the Substitute Complaint and the changes therein must be considered by the Court, otherwise, the right to file a " .. [if facts provable in Substitute pleading after a pleading is stricken is effectively denied. the [substituted] complaint would support a cause of action, the motion fo strike must be denied ... Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ... the complaint is not vulnerable to a motion to strike." Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d | (1991). “,.. a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy." (Internal quotation marks omitted.) Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 413, 867 A.2d 841 (2005), The Substituted Complaint cures the perceived defects originally determined by this court and sufficiently alleges the defendant’s actions were purposeful, harmful, and done with an evil motive to deprive the plaintiff of the remaining benefits of its Jeasehold interest in the demised premises for the sole purpose of profiting from its plan to save approximately $3.4 million. Corner House Condominium Association v. State Farm & Casualty Co. (Conn. Super. 2018) “Depending upon the nature of the assertions, however, the same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation. That is generally so when the aggravating factors present constitute more than a failure to deliver on a promise." (Internal quotation marks omitted.) Banknorth, N.A. v. Blackrock Realty, 2010 Conn. Super. LEXIS 861 The substituted language in Count Two of the Substituted Complaint clearly and succinctly lays out a plan which offends public policy as it has been established by statutes, the common law, or otherwise, is immoral, unethical, oppressive, or unscrupulous, and causes substantial injury to consumers. The allegations in COUNT TWO of the Substituted Complaint satisfy the statutory requirements and case law supporting a valid claim for a violation of CUTPA and have cured any deficiencies cited by the Court in ruling upon defendant’s Motion to Strike COUNT TWO of the Amended and Revised complaint. B. The Substituted Complaint Cures The Deficiencies Cited by the Court in ruling upon Defendant’s Motion to Strike Count Three of the Amended and Revised Complaint As cited above, the plaiatiff fully complied with Connecticut Practice Book sec, 10(44) Therefore, the defendant’s motion for judgment is not appropriate. With respect to the actual changes made in the Substituted Complaint, "[A]n action for breach of the covenant of good faith and fair dealing requires proof of three essential elements, which [the] plaintiff must duly plead: first, that the plaintiff and the defendant were parties to a contract under which the plaintiff reasonably expected to receive certain benefits; second, that the defendant engaged in conduct that injured the plaintiff's right to receive some or all of those benefits; and third, that when committing the acts by which it injured the plaintiff's right to receive benefits it reasonably expected to receive under the contract, the defendant was acting in bad faith." Tarabek v. Hartford Ins. Co., Superior Court, J.D. of New London, Docket No. 561153 (8/26/02, Hurley, J.T.R.); Marder vy. Nationwide Ins. Co., Superior Court, J.D. of New Haven, Docket No. CV-13-6038355-S (11/12/15, Wilson, J.) [61 Conn.L.Rptr. 269]. Kellogg v. Middlesex Mutual Assurance Co. (Conn. Super. 2018), Docket No. FSTCV166027990S(June 1, 2018, Jacobs, J.) "Bad faith in general implies...a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive ... Bad faith means more than mere negligence; it involves a dishonest purpose." (Internal quotation marks omitted.) Capstone Building Corp. v. American Motorists Ins. Co., 308 Conn. 760, 794 (2013); Kellogg v. Middlesex Mutual Assurance Co, (Conn. Super. 2018), Docket No. FSTCV166027990S(June 1, 2018, Jacobs, J.). " | the following types [of bad faith] are among those which have been recognized in judicial decisions: evasion of the spirit of the bargain. ..willful rendering of imperfect performance... and interference with or failure to cooperate in the other party’s performance." (Internal quotation marks omitted.) Elm Street Builders, Inc. v. Enterprise Park Condominium A ssn., Inc., 63 Conn.App. 657, 667, 778 A.2d 237 (2001). “In alleging a breach of the covenant of good faith and fair dealing, the courts have required a plaintiff to allege sufficient facts or allegations from which one can make a reasonable inference of sinister motive. Nevertheless, there must be allegations that the defendant purposefully engaged in the conduct at issue.” See, e.g., Urban Apparel Plus, LLC v. Sentinel Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV-13-6035293-S, 2013 WL 6171114 (October 31, 2013, Fischer, J.) (57 Conn.L.Rptr. 124, 126); Corner House Condominium Association v. State Farm & Casualty Co, (Conn, Super. 2018) Given that all weil-pleaded facts and those facts necessarily implied from the allegations are taken as admitted, the plaintiff alleges that the acts and conduct of the defendant were a malicious, intentional, willful, dishonest, and sinister plan contrived by the Landlord for the dishonest purpose of saving approximately $3,400,000.00 and was intentionally and willfully calculated to deprive the plaintiff of the remaining benefits of its leasehold interest in the demised premises and deprive the plaintiff of the benefits to which it was entitled under the Lease all to the financial detriment of the plaintiff. The substituted language in Count Three of the Substituted Complaint clearly and succinctly lays out an intentional, malicious and sinister plan by the defendants to harm the plaintiff for its own benefit. The allegations in COUNT THREE of the Substituted Complaint satisfy the statutory requirements and case law supporting a valid claim for a violation of the Covenant of Good Faith and Fair Dealing and have cured any deficiencies cited by the Court in ruling upon defendant’s Motion to Strike COUNT Three of the Amended and Revised complaint. Based on the foregoing, the plaintiff objects to the defendants Motion for Judgment as to Counts Two and Three of plaintiffs Substituted Complaint as procedurally inappropriate and substantively lacking in merit. THE PLAINTIFF PHIL’S GRILL, LLC By Juris #305398 Scott C. DeLaura Palumbo & DeLaura, LLC 528 Chapel Street New Haven, CT 06511 Phone: 203.773.1113 Juris No. 415035 10 EXULBLT A DOCKET NO.: FBT-CV22-6114270-S : SUPERIOR COURT PHIt’s GRILL, LLC + 3,0, OF FAIRFIELD V. : AT BRIDGEPORT NOROTON HEIGHTS SHOPPING CENTER, INC, and NOROTON HEIGHTS & COMPANY, LLC APRIL 21, 2023 NOTICE OF PORTIONS OF SUBSTITUTED COMPLAINT AS AMENDED Pursuant to §10-59 of the Connecticut Practice Book, the plaintiff PHIL’s GRILL, LLC, the following are the portions of the Revised and Amended Complaint dated August 25, 2021 which were amended in the Substituted Complaint dated April 21, 2023: COUNT TWO: (As to Violation C.G.S. §42a-110b, CUTPA) 1-8. Paragraphs 1 through 8 of COUNT ONE are hereby incorporated by reference and made paragraphs 1 through 8 of this COUNT TWO. 9. Thereafter, the Landlord determined that by removing all the tenants and razing all the buildings at once rather than doing the redevelopment project at Noroton Heights Shopping Center in phases would save NHSC “Somewhere in the order of three million” dollars. 10. In addition, if the Tenant’s lease was terminated, the Landlord would not have to install fixtures, improvements, and appurtenances of at least equal in kind and quality of those contained in the demised premises into the Substitute Premises pursuant to the express requirements of paragraph 39(B) of the Lease. The expense to install fixtures, improvements, and appurtenances of at least equal in kind and quality of those contained in the demised premises into the Substitute Premises pursuant to the terms and conditions of paragraph 39(B) of the Lease was exnected "to be north of $400,000.00". 11. By virtue of the clear and unambiguous language of the Lease, the Landlord knew that the plaintiff was legally entitled to occupy the premises through September 30, 2020 and as result of the renewal options provided in section 40 of the Lease, the Tenant had the right to extend the Lease to September 30, 2030. 12. As a result of the clear and unambiguous language of the Lease and the right of the Tenant to occupy the premises through September 30, 2030, the Landlord was unable to raze all the buildings at once rather than doing the redevelopment project at Noroton Heights Shopping Center in phases because Section 39 of the Lease required that the Landlord to send a valid Notice of Substitution to the Tenant and provide the Tenant with other reasonably similar space elsewhere in the Shopping Center (the “Substitute Premises”) designated by the Landlord contained at least the same square foot area as the Demised Premises containing fixtures, improvements, and appurtenances of at least equal in kind and quality of those contained in the Demised Premises and to move the Tenant to that Substitute Space within 15 days of receipt of a valid Notice of Substitution. 13. Notwithstanding, the Landlord, in order to save approximately $3,400,000.00 contrived a malicious, intentional, willful, immoral, unethical, and unscrupulous plan to oust the plaintiff from its leased premises with eleven years remaining on the Lease without compensating the plaintiff in clear violation of Section 39 of the Lease thereby depriving the plaintiff of the remaining benefits of its leasehold interest in the demised premises as follows: a in March of 2018, James Calcagnini, in response to prior email communications with Christian Bangert, the commercial realtor for NHSC’s redevelopment project, agent for Landlord, and primary contact with the tenants on behalf of NHSC, regarding a meeting to further discuss a proposed unbuilt Substitute Premises pursuant to Section 39 of the Lease, emailed Christian Bangert that “Iam currently out of town and won't get back until the 7th” because he was in Texas and would not return until April 7, 2018. b in furtherance of the Landlord’s malicious, intentional, willful, immoral, unethical, and unscrupulous plan to wrongfully oust the plaintiff fram its leased premises prior to the termination of its Lease, James Palmer, a principal and agent of NHSC, with Plaintiff's legal counsel, maliciously, intentionally, and willfully wrote a letter dated April 4, 2018 (“Notice of Substitution”) which stated in part, “This letter shall serve as formal notice to you of Landlord's election to require you to vacate and surrender your current leased space and the substitution of other reasonably similar space in the redeveloped Shopping Center as your new lease premises...Please confirm in writing no later than April 19, 2018, that such S ubstitute Premises is acceptable for you to relocate Jimmy’s Southside Tavern to. IF we do not hear from you by the above referenced date, we will assume that you are not willing to relocate to such space.” c. James Palmer and his legal counsel knew by a plain reading of Section 39 of the Lease that said Notice of Substitution did not comply with Section 39 of the Lease regarding Relocation in that: 1 There was no other reasonably similar space containing at least the same square foot area as the Demised Premises elsewhere in the Shopping Center (the “Substitute Premises”) with fixtures, improvements and appurtenances at least equal in kind and quality to those contained in the Demised Premises at the time such Notice of Substitution was given by the Landlord; and ii. There was no requirement in Section 39 of the Lease that the had to respond in writing within fifteen (15) days of receipt as to whether they would accept the proposed unbuilt substitute premises, but rather, the Lease required that the Tenant, upon receipt of a valid Notice of Substitution, had to vacate and surrender the Demised Premises and occupy the a proposed fully substantially completed Substitute Premises no later than fifteen [15] days after the Landlord had substantially completed any work to be performed in the Substitute Premises. d On April 5, 2018, James Palmer allegedly expeditiously hand delivered the Notice of Substitution to UPS to be delivered via overnight delivery on April 6, 2018, to 36 Plymouth 2 Road, Darien, Connecticut, the principal place of Residence of James Caicagnini, the sole owner of Phil's Grill, LLC. The Notice of Substitution was intentionally and willfully allegedly delivered to Mr. Calcagnini’s principal place of residence, at location and a date where the Landlord knew or should have known that Mr, Calcagnini would not be present and which was not a mandatory designated location for Notice under the Lease. One of the designated locations for Notice under the Lease was the Demised Premises which was open and staffed on the purported date of delivery. 14, Mr. Calcagnini did not receive, sign for, or see any Notice of Substitution at his home when he returned from Texas late in the evening of April 7, 2018, and was not aware of any Notice of Substitution until July 2, 2019. 15. There was no notice of a delivery of said Notice of Substitution to Mr. Calcagnini nor any discussion between Mr, Calcagnini or any of his agents, servants, or employees with the Landlord or any agents, servants, or employees of the Landlord regarding the Notice of Substitution or any consequence of failing to respond in writing to the Notice of Substitution by April 19, 2018 until July 2, 2019. 16. The Tenant continued to pay its rent and was in iull compliance with the Lease during the Tenant’s remaining period of occupancy of the Premises. 17. Approximately 15 months later, James Palmer met with James Calcagnini on July 2, 2019, and handed Mr. Calcagnini “bullet points” which stated, in part, that “James waives his relocation rights by not responding to April 4th, 2018, letter sent by Jim via UPS showing proposed substitute space”. 18. Thereafter, in furtherance and support of said malicious, intentional, willful, immoral, unethical, and unscrupulous plan to wrongfully oust the tenant from the premises before the termination of its Lease, the Landlord met with the Darien Planning & Zoning Commission meeting on July 30, 2019 and informed the commission that the project would no longer be done in phases and the three (3) buildings would now be demolished all at once. The Commission unanimously approved the plan and stated in a letter, “We understand that it is now the intention of Noroton Heights Shopping Center Inc. to complete the redevelopment of the subject property in a single phase, rather than in the multiple phases originally approved.” ig, One day after the Darien Planning & Zoning Commission meeting approved the plan to demolish all the buildings at once instead of phases, James Palmer, a principal and agent of NHSC, hand delivered a Termination of Lease letter to the Restaurant Manager on July 31, 2019 at the Demised Premises, as opposed to the principal place of residence of James Calcagnini as was alleged with respect to the Notice of Substitution. 20. Thereafter, in furtherance of the said malicious, intentional, willful, immoral, unethical, and unscrupulous plan to wrongfully oust the tenant from the premises before the termination of its Lease, the Landlord served the Tenant with a Notice to Quit on or about August 30, 2019, the absolute minimum amount of time after Notice of Termination was served pursuant to the terms of conditions of the Lease, which stated the reason for said termination as “they violated an express stipulation of the lease”, 21. Landlord commenced a Summary Process action (“Summary Pracess Action”) against Tenant in the Judicial District of Stamford/Norwalk, Norwalk Housing Session on or about September 23, 2019, and was assigned the Docket No.: NWH-CV19-6005175. 22. On or about March 11, 2020, judgment for immediate possession was granted to the Landlord by the Housing Court. 23. On or about March 16, 2020, Tenant filed an appeal of the decision of the Housing Court in the State of Connecticut Appellate Court and was assigned the Docket No.: AC 44042. 24, On or about March 20, 2020, defendant NHSC filed a Plaintiffs Motion To Set Bond stating in relevant part, “This Court [Judicial District of Stamford/Norwalk, Norwalk Housing Session], in its memorandum of decision made a finding of fact that the costs to the plaintiff from the defendani’s continued occupancy exceed one million dollars.” And, “For the foregoing reasons, the plaintiff moves that this court set bond with surety in the amount of $1,000,000 as a condition of the continuation of this appeal.” 25. Notwithstanding the plaintiff's disagreement with the trial Court’s finding, as a result of the threatened exposure to Tenant for its continued occupancy exceeding one million dollars, the request to set a One Million ($1,000,000.00) Dollar Bond to the same Court which made the above findings of fact, and the probable burden of posting a One Million ($1,000,000.00) Dollar Bond during the pendency of the appeal, on or about March 31, 2020, the Tenant surrendered the Demised Premises in compliance with the Trial Court’s judgment for immediate possession. 26. Gn or about September 7, 2021, the State of Cor necticut Appellate Court rendered a decision holding that “The Judgment is reversed, and the case is remanded with direction to render judgment for the defendant.”. 27. On or about November 9, 2021, The Supreme Court of the State of Connecticut denied Noroton Heights Shopping Center, Inc.’s Petition for Certification to Appeal. 28. The trial court entered judgment in favor of the Tenant on January 13, 2022. 29. Defendant's aforesaid conduct was a malicious, intentional and willful attempt to wrongfully terminate the Tenant’s Lease in order to save approximately $3,400,000.00 and not compensate the Tenant for voluntarily terminating the Lease before it expired, constituted unfair and/or deceptive practices within the meaning of Connecticut General Statutes §42a-110b{a) in the conduct of the trade or commerce, in that defendant's acts and conduct violates or offends public policy, was malicious, intentional, willful, immoral, unethical, and unscrupulous, all for aggrandizement of the Landlord and/or was substantially injurious to consumers, or other businesspersons including the Tenant. 30. The acts and conduct of the defendant described above were intentionally and willfully calculated to deprive the plaintiff of the remaining benefits of its leasehold interest in the demised 4 premises and deprive the plaintiff of the benefits to which it was entitled under the Lease all to the financial benefit of the defendant and constituted a violation of Connecticut General Statutes §42a-110 et seq. 31. Defendant’s conduct caused substantial injury to plaintiff, which could not be reasonably avoided and is not outweighed by any countervailing benefit to other businesspersons. 32. Asa direct and proximate result of defendant’s violations of CUTPA, plaintiff has suffered an ascertainable loss of money. OUNT THREE: (Bad Faith) 1-10. Paragraphs 1 through 10 of COUNT ONE are hereby incorporated by reference and made paragraphs 1 through 10 of this COUNT THREE. 11. By virtue of the clear and unambiguous language of the Lease, the reasonably Landlord knew that the Tenant was legally entitled to occupy the Premises through September 30, 2020 and, as result of the renewal options provided in Section 40 of the Lease, the Tenant had the right to extend the Lease to September 30, 2030. 12 By virtue of the Lease, the Tenant reasonably expected the contractual right to occupy the premises through September 30, 2020 and as result of the reivewal options provided in section 40 of the Lease, the Tenant reasonably expected to have the right to extend the Lease to September 30, 2030. 13. Asa result of the clear and unambiguous language of the Lease and the right of the Tenant to occupy the premises through September 30, 2030, the Landlord was unable to raze all the buildings at once rather than doing the redevelopment project at Noroton Heights Shopping Center in phases because Section 39 of the Lease required that the Landlord to send a valid Notice of Substitution to the Tenant and provide the Tenant with other reasonably similar space elsewhere in the Shopping Center (the “Substitute Premises”) designated by the Landlord contained at least the same square foot area as the Demised Premises containing fixtures, improvements, and appurtenances of at least equal in kind and quality of those contained in the Demised Premises and to move the Tenant to that Substitute Space within 15 days of receipt of a valid Notice of Substitution. 13. The Landlord, in order to save approximately $3,400,000.00 without compensating the plaintiff to voluntarily vacate the Premises before the expiration of the term of the Lease, contrived a malicious, intentional, willful, dishonest, and sinister plan to oust the plaintiff from its leased premises with eleven years left on the Lease as follows: a In March of 2018, James Calcagnini, in response to prior email communications with Christian Bangert, the commercial realtor for NHSC’s redevelopment project, agent for Landlord, and primary contact with the tenants on behali of NHSC, regarding a meeting to discuss a proposed, as of then, unbuilt Substitute Premises pursuant to Section 39 of the Lease, emailed Christian Bangert that “I ar currently out of town and won't get back until the 7th” because he was in Texas and would not return until April 7, 2018. b In furtherance of the Landlord’s malicious, intentional, willful, dishonest, and sinister plan to wrongfully oust the plaintiff from its leased premises prior to the termination of its Lease in order to avoid compensating the Tenant for it remaining interest and benefits in the 5 Lease and for the Landlord to save approximately $3,400,000.00 dollars in the renovation of the shopping center, James Palmer, a principal and agent of NHSC, with Plaintiff's legal counsel, maliciously, intentionally, willfully, and dishonestly wrote a letter dated April 4, 2018 (“Notice of Substitution”) which stated in part, "This letter shall serve as formal notice to you of Landlord's election to require you to vacate and surrender your current leased space and the substitution of other reasonably similar space in the redeveloped Shopping Center as your new lease premises...Please confirm in writing no later than April 19, 2018, that such Substitute Premises is acceptable for you to relocate Jimmy’s Southside Tavern to, If we do not hear from you by the above referenced date, we will assume that you are not willing io relocate to such space.” c James Palmer and his legal counsel knew by a plain reading of Section 39 of the Lease that said Notice of Substitution did not comply with Section 39 of the Lease regarding Relocation in that: i There was no other reasonably similar space containing at least the same square foot area as the Demised Premises elsewhere in the Shopping Center (the “Substitute Premises”) with fixtures, improvements and appurtenances at least equal in kind and quality to those contained in the Demised Premises at the time such Notice of Substitution was allegedly delivered to Tenant which the Tenant could move into within 15 days of receipt of a Notice of Substitution; and ii. There was no requirement in Section 39 of the Lease that the tenant, upon receipt of a Notice of Substitution had to respond in writing within fifteen (15) days of receipt as to whether they would accept unbuilt praposed substitute premises, but rather, the Lease clearly and unambiguously required that upon receipt of a valid Notice of Substitution, the tenant was only required to vacate and surrender the Demised Premises and occupy the Substitute Premises no later than fifteen [15] days after the Landlord had substantially completed any work to be performed in the Substitute Premises. d. On April 5, 2018, James Palmer allegedly hand delivered the Notice of Substitution to UPS to be delivered via overnight delivery on April 6, 2018, to 36 Plymouth Road, Darien, Connecticut, the principal place of Residence of James Calcagnini, the sole owner of Phil’s Grill, LLC, The invalid Notice of Substitution was intentionally and willfully allegedly delivered to Mr. Calcagnini’s principal place of residence, at location and a date where the Landlord knew or should have known Mr. Calcagnini would not be present and which was not a designated location for Notice under the Lease. One of the designated locations for Notice under the Lease was the Demised Premises which was open and staffed on the purported date of delivery and could have been received and signed for. 14, Mr. Calcagnini did not receive, sign for, or see any Notice of Substitution at his principal place of residence when he returned from Texas late in the evening of April 7, 2018, or thereafter until July 2, 2019. 15. There was no notice of a delivery of a Notice of Substitution or any discussion between Mr. Calcagnini or any of his agents, servants, or employees with any agents, servants, or employees of the Landlord regarding the Notice of Substitution or any consequence of failing to respond in writing by 6 April 19, 2018 to the Notice of Substitution purportedly delivered to Mr. Calcagnini’ s principle place of residence until July 2, 2019. 16. The plaintiff continued to pay its full rent on eact, subsequent and successive month thereafter and was in full compliance with the Lease during the Tenant’s entire period of occupancy of the Premises and was never notified of any default of any express provision and/or stipulation of the Lease. 17. Approximately 15 months later, James Palmer met with James Calcagnini on July 2, 2019, and handed Mr. Calcagnini “bullet points” which dishonestly stated, in part, that “James waives his relocation rights by not responding to April 4th, 2018 Letter sent by Jim via UPS showing proposed substitute space”. 18. Thereafter, in furtherance and support of the malicious, intentional, willful, and dishonest plan to wrongfully oust the tenant from the premises before the termination of its Lease in order to avoid compensating the Tenant for it remaining interest and benefits in the Lease if the Tenant chose to vacate the premises voluntarily and to save approximately $3,400,000.00 dollars in the renovation of the shopping center, the Landlord met with the Darien Planning & Zoning Commission meeting on July 30, 2019 and informed the commission that the project would no longer be done in phases and the three (3) buildings would now be demolished all at once. The Commission unanimously approved the plan and stated in a letter, “We understand that it is now the intention of Noroton Heights Shopping Center Inc. to complete the redevelopmentof the subject property ina single phase, rather than in the multiple phases originally approved.” is. One (1) day after the Darien Planning & Zoning Commission meeting approved the plan to demolish all the buildings at once instead of phases, James Palmer, a principal and agent of NHSC, hand delivered a Termination of Lease letter to the Restaurant Manager on July 31, 2019 at the Demised Premises, as opposed to the principal place of residence of James Calcagnini as was alleged with respect to the delivery of the Notice of Substitution. 20. In furtherance of said dishonest and sinister plan, the Landlord served the Tenant with a Notice to Quit on or about August 30, 2019, which stated the reason for said termination as “they violated an express stipulation of the lease”. 21. Landlord commenced a Summary Process action (“Summary Process Action”) against Tenant in the Judicial District of Stamford/Norwalk, Norwalk Housing Session on or about September 23, 2019, and was assigned the Docket No.: NWH-CV19-6005175. 22. On or about March 14, 2020, judgment for immediate possession was granted to the Landlord by the Housing Court. 23, On or about March 16, 2020, Tenant filed an appeal of the decision of the Housing Court in the State of Connecticut Appellate Court and was assigned the Docket No.: AC 44042, 24. On or about March 20, 2020, defendant NHSC filed a Plaintiff's Motion To Set Bond stating in relevant part, “This Court [Judicial District of Stamford/Norwalk, Norwalk Housing Session], in its memorandum of decision made a finding of fact that the costs to the plaintiff from the defendant's continued occupancy exceed one million dollars.” And, “For the foregoing reasons, the plaintiff moves that this court set bond with surety in the amount of $1,000,000 as a condition of the continuation of this appeal.” 25, Notwithstanding the plaintiff's disagreement with the trial Court's finding, as a result of the threatened exposure to Tenant for its continued occupancy exceeding one million dollars, the request to set a One Million ($1,000,000.00) Dollar Bond to the same Court which made the above findings of fact, and the probable burden of posting a One Million ($1,000,000.00) Dollar Bond during the pendency of the appeal, on or about March 31, 2020, the Tenant surrendered the Demised Premises in compliance with the Trial Court’s judgment for immediate possession. 26. On or about September 7, 2021, the State of Connecticut Appellate Court rendered a decision holding that “The Judgment is reversed, and the case is remanded with direction to render judgment for the defendant.”. 27, On or about November 9, 2021, The Supreme Court of the State of Connecticut denied Noroton Heights Shopping Center, inc.’s Petition for Certification to Appeal. 28. The trial court entered judgment in favor of the Tenant on January 13, 2022. 29. Defendant's aforesaid conduct including but not limited to the alleged delivery of a defective Notice of Substitution to an address which was not designated in the Lease and on date when the Landlord knew that Mr. Calcagnini would be not be present in a malicious, intentional, willful, and dishonest attempt to wrongfully terminate the Tenant’s Lease in order to save approximately $3,400,000.00, injured the plaintiff's right to receive some or all of the benefits under the Lease; and injured the plaintiff's right to receive benefits it reasonably expected to receive under the Lease, as a result of the Landlords refusal to fulflil some duty or some contractual obligation, was not prompted by an honest mistake as to the Landlord’s rights or duties, but was motivated by an interested and sinister motive of the Landlord. 30. The acts and conduct of the defendant describea above was a malicious, intentional, willful, dishonest, and sinister plan contrived by the Landlord for the dishonest purpose of saving approximately $3,400,000.00 and was intentionally and willfully caiculated to deprive the plaintiff of the remaining benefits of its leasehold interest in the demised premises and deprive the plaintiff of the benefits to which it was entitled under the Lease all to the financial detriment of the plaintiff. 31. As a result, the defendant, NOROTON HEIGHTS SHOPPING CENTER, INC., by its wrongful conduct has maliciously, intentionally, willfully, and dishonestly breached Its implied covenant to deal fairly and in good faith with the plaintiff, and deprived the plaintiff of the reasonably expected remaining benefits of its leasehold interest in the Demised Premises and the plaintiff and has been damaged as a result thereto. THE PLAINTIEF-- Ss? “BY” era ae Scott C. Delaura PALUMBO & DeLAURA, LLC 528 Chapel Street New laven, CT 06511 (203) 773-1413 Juris #415035 CERTIFICATION This shall certify that a copy of the above was electronically delivered on the date hereof to all counsel of record and that written consent for electronic delivery was received from all counsel of record who were electronically served. Abram Heisler Attorney at Law 16 River Street, second floor Norwalk, CT 06850 LITCHFIELD CAVO (416477) 82 HOPMEADOW STREET SUITE 210 SIMSBURY, CT 06089 Juris # 305398 Scott C. DeLaura 16