Preview
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