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  • PHIL'S GRILL, LLC v. NOROTON HEIGHTS SHOPPING CENTER, INCORPORATED Et AlC90 - Contracts - All other document preview
  • PHIL'S GRILL, LLC v. NOROTON HEIGHTS SHOPPING CENTER, INCORPORATED Et AlC90 - Contracts - All other document preview
  • PHIL'S GRILL, LLC v. NOROTON HEIGHTS SHOPPING CENTER, INCORPORATED Et AlC90 - Contracts - All other document preview
  • PHIL'S GRILL, LLC v. NOROTON HEIGHTS SHOPPING CENTER, INCORPORATED Et AlC90 - Contracts - All other document preview
  • PHIL'S GRILL, LLC v. NOROTON HEIGHTS SHOPPING CENTER, INCORPORATED Et AlC90 - Contracts - All other document preview
  • PHIL'S GRILL, LLC v. NOROTON HEIGHTS SHOPPING CENTER, INCORPORATED Et AlC90 - Contracts - All other document preview
  • PHIL'S GRILL, LLC v. NOROTON HEIGHTS SHOPPING CENTER, INCORPORATED Et AlC90 - Contracts - All other document preview
  • PHIL'S GRILL, LLC v. NOROTON HEIGHTS SHOPPING CENTER, INCORPORATED Et AlC90 - Contracts - All other document preview
						
                                

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DOCKET NO.: FBT-CV22-6114270-S : SUPERIOR COURT PHIL’s GRILL, LLC 2 J.D. 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: OUNT TWO: (As to ation 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 expected “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 Caicagnini, 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 “| 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 maticious, 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 !eased 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.” c. James Palmer and his legat 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 given by the Landlord; and li. 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 Calcagnini, the sole owner of Phil's Grill, LUC. 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. is. 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 full 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 na 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 ina single phase, rather than in the multiple phases originally approved.” 19. 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 letterto 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 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 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 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 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. As a direct and proximate result of defendant’s violations of CUTPA, plaintiff has suffered an ascertainable loss of money. COUNT 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 renewal 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 behalf 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 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, 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 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: 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 proposed 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 detivered 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 each 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 ail 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 ina single phase, rather than in the multiple phases originally approved.” 19, 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 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 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 fulfill some dutyor some contractual obligation, was not prompted by an honest mistake as to the Landlora’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 Landiord 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 anc the plaintiff and has been damaged as a result thereto. 1 “pk B Scott C. DeLaura PALUMBO & DeLAURA, LLC 528 Chapel Street New Haven, CT 06511 (203) 773-1113 Juris #415035 CERTIFICATION This shall certify that a copy of the Notice of the Amended Portions of the Substituted Complaint dated April 21, 2023 was electronically delivered on the date hereof to all counsel and pro se parties of record and that written consent for electronic delivery was received from all counsel and pro se parties of record who were electronically served. ABRAM J HEISLER (408828) 16 RIVER STREET SECOND FLOOR NORWALK, CT 06850 LITCHFIELD CAVO (416477) 82 HOPMEADOW STREET SUITE 210 SIMSBURY, CT 06089 Juris # 305398 Scott C. DeLaura 10