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Date Filed 12/20/2023 5:27 PM
Superior Court - Norfolk
Docket Number 2382CV00673 19
Docketed 12/21/2023
COMMONWEALTH OF MASSACHUSEITS
NORFOLK, SS. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 2382CV00673
FASHION GALLERY, INC.
d/b/a RAINBOW
Plaintiff,
Vv.
ONYX PARTNERS, LLC,
ONYX SPRINGFIELD CROSSING, LLC,
ONYX SPRINGFIELD CROSSING
MANAGER, LLC, and EASTFIELD
ASSOCIATES, LLC,
Defendants.
FASHION GALLERY, INC. d/b/a RAINBOW’S
MOTION TO AMEND THE VERIFIED COMPLAINT
(Hearing Requested)
Pursuant
to Mass. R. Civ. P 15(a), Plaintiff Fashion Gallery, Inc. d/b/a Rainbow
(‘Rainbow’) moves for leave to amend the Verified Complaint in this action to add Anton
Melchionda and Brian Kaplan as parties to this action. A Proposed Amended Verified
Complaint is attached hereto as Exhibit A. In support of its Motion, Rainbow relies on its
supporting Memorandum of Law.
4866-6295-9250.v1
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Superior Court - Norfolk
Docket Number 2382CV00673
WHEREFORE, Rainbow requests that the Court grant its Motion to Amend and allow
Rainbow
to file the Amended Verified Complaint attached as Exhibit A.
Respectfully Submitted,
FASION GALLERY, INC.
d/b/a RAINBOW
By its attomeys,
/s/ Kyle W. Cunnii
David A. Michel BBO #682122
Kyle W. Cunningham BBO #709081
SHERIN AND LODGEN LLP
101 Federal Street
Boston, Massachusetts 02110
(617) 646-2000
damichel @sherin.com
kwcunningham@sherin.com
Dated: 11/22/2023
RULE 9C CERTIFICATION
I, David A. Michel, hereby certify, pursuant
to Superior Court Rule 9C(a), I conferred
with defendants’ counsel Kelly Frey by telephone on November 14, 2023 at 3:00 PM ina good
faith effort to narrow areas of disagreement conceming this Motion.
/s/DavidA. Michel
CERTIFICATE OF SERVICE
I, Kyle W. Cunningham, hereby certify that on November 22, 2023, I served the above
document
by email upon:
Kelly Frey, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
(617) 348-1827
kifrey@mintz.com
/s[Kyle W. Cunnii
-2
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Superior Court- Norfolk
Docket Number 2382CV00673
ExhibitA
Date Filed 12/20/2023 5:27 PM
Superior Court - Norfolk
Docket Number 2382CV00673
COMMONWEALTH OF MASSACHUSETTS
NORFOLK, SS SUPERIOR COURT
CIVIL ACTION
NO. 2382CV 00673
aaa
FASHION GALLERY, INC.
d/b/a RAINBOW
Plaintiff,
Vv.
ONYX PARTNERS, LLC
ONYX SPRINGFIELD CROSSING LLC,
ONYX SPRINGFIELD CROSSING
MANAGER LLC
EASTFIELD ASSOCIATES, LLC,
BRIAN KAPLAN, and
ANTON MELCHIONDA
Defendants.
aaa
AMENDED VERIFIED COMPLAINT
PARTIES
1 Plaintiff, Fashion Gallery, Inc. d/b/a Rainbow is a New Jersey corporation with a
principal place of business at 1000 Pennsylvania Avenue, Brooklyn, New Y ork.
2 Defendant, Eastfield Associates, LLC (“Eastfield”) is a Delaware limited liability
company with a principal place of business located at 56 Livingston Avenue, Suite 200,
Roseland, New Jersey.
3 Defendant, Onyx Springfield Crossing LLC, upon information and belief, is a
Delaware limited liability company with a principal place of business located at 200 Reservoir
Street, Suite 306, Needham, Massachusetts.
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Docket Number 2382CV00673
4 Defendant Onyx Springfield Crossing Manager LLC, upon information and
belief, is a Massachusetts limited liability company with a principal place of business located at
200 Reservoir Street, Suite 306, Needham, Massachusetts.
5. Defendant, Onyx Partners, LLC, upon information and belief, is a Delaware
limited liability company with a principal place of business located at 200 Reservoir Street, Suite
306, Needham, Massachusetts 02494. Onyx Partners, LLC, Onyx Springfield Crossing Manager
LLC, and Onyx Springfield Crossing LLC are collectively referred herein as “Onyx”.
6 Defendant Anton Melchionda is the Manager of defendant Onyx Partners, LLC.
7 Defendant Brian Kaplan is the Vice President of Development of Defendant Onyx
Partners, LLC.
VENUE AND JURISDICTION
8 This Court has subject matter jurisdiction over this action pursuant to G.L. c. 212,
§§3 and 4, G.L. c. 214, §1, and G.L. c. 231A, §§1 and 2 and because the amount in controversy
exceeds the sum of $50,000.
9 This Court has personal jurisdiction over the Defendants pursuant to G.L.
c. 223A, §§2 and 3, because they are organized in Massachusetts, regularly transact business in
Massachusetts, own real estate in Massachusetts, and/or maintain a principal residence and/or
principal place of business in Massachusetts.
10. Norfolk County is the proper venue for this action pursuant to G.L. c. 223, §8 as
Defendants Onyx Partners, LLC, Onyx Springfield Crossing Manager LLC, and Onyx
Springfield Crossing LLC have a principal place of business in Norfolk County.
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Docket Number 2382CV00673
FACTS
11. On or about October 24, 2010, Eastfield entered into a lease agreement with
Plaintiff (as amended, the “Lease”) whereby Eastfield agreed to lease Premises to Plaintiff
located at the Eastfield Mall, 1655 Boston Post Road, Springfield, Hampden County,
Massachusetts. A true and accurate copy of the Lease is attached hereto as Exhibit A.
12. On or about January 7, 2016, Eastfield and Plaintiff amended the Lease. A true
and accurate copy of the First Amendment to Lease is attached hereto as Exhibit B.
13. On July 24, 2020, Plaintiff exercised its right and option to further extend the term
of the Lease for an additional five (5) years for the period commencing February 1, 2021,
through and including January 31, 2026. A true and accurate copy of the July 24, 2020
Extension Letter is attached hereto as Exhibit C.
14. The Lease requires that “[t]his Lease and the covenants and conditions herein
contained shall inure to the benefit of and be binding upon Landlord, its successors and assigns,
and shall be binding upon Tenant, its successors and assigns and shall inure to the benefit of
Tenant... Upon any sale or other transfer by Landlord of its interest in the Premises and in this
Lease, and the assumption by Landlord’s transferee of the obligations of Landlord hereunder,
Landlord shall be relieved of any obligations under this Lease accruing hereafter.” See Exhibit
A, Section 20.6. Plaintiff does not know whether Onyx has assumed the obligations of Landlord
under the Lease, therefore Plaintiff is proceeding against both Onyx and Eastfield until the
proper Landlord party can be determined, through discovery or otherwise.
15. Plaintiff
is entitled to “peaceably have, hold and enjoy the Premises without any
interruption or disturbance from Landlord, or anyone lawfully or equitably claiming through or
under Landlord.” See ExhibitA, Addendum, p. 56.
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Docket Number 2382CV00673
16. The Lease prohibited Plaintiff from recording a Notice of Lease or Memorandum
of Lease pursuant
to G.L. c. 183, §4.
17. Onyx purchased the Eastfield Mall from Eastfield on or about April 19, 2023. At
no point did Defendants notify Plaintiff that Onyx had purchased the Eastfield Mall.
18. Onyx had actual notice of the Lease prior to its April 19, 2023, purchase of the
Property. On or about Thursday, March 23, 2023, Onyx’s real-estate broker for the purchase of
the Eastfield Mall, Chris Kelly of Atlantic Retail, e-mailed Brian Kaplan of Onyx, contemplating
a “net buy out” of Plaintiff's lease for $438,000.
19. Eastfield did not notify Plaintiff of its impending sale of the Eastfield Mall to
Onyx and did not approach Plaintiff about buying out the remaining term of the Lease.
20. Plaintiff only learned of the sale through news reports, which included reference
to Onyx’s plan to close the Mall for a two-year redevelopment project that would convert the
Mall to a mixed-use residential and commercial site.
21. The Lease provides that, in the event that Landlord undertakes a “major
expansion or redevelopment” of the Eastfield Mall:
Landlord shall have the right... to require Tenant to relocate its operation, at
Landlord’s expense, to other premises (the “New Premises”) in another part of
the Shopping Center in accordance with the following:
(i) Landlord shall notify Tenant, at least ninety (90) days prior to the
proposed relocation date, of Landlord’s intention to relocate
Tenant’s operation to the New Premises;
(ii) The proposed relocation date and the size, configuration and
location of the New Premises shall be set forth in the Landlord’s
notice; and
(iii) The New Premises shall be substantially the same size and
configuration as [Tenant’s current] Premises
Exhibit B, First Amendment to Lease, § 7(A) (emphasis added).
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Docket Number 2382CV00673
22. Plaintiff cannot be forced to vacate, and continues to hold full “right, title, and
interest in and to” its current Premises until “the date the New Premises are delivered to Tenant
with Tenant’s furniture, trade fixtures, equipment and inventory therein” from and after which
“the New Premises shall be deemed demised hereunder.” Exhibit B, § 7(D).
23. As such, regardless of Onyx’s current redevelopment plans, Rainbow is entitled to
continue operating at the Eastfield Mall, without interruption, through the end of 2026.
24. Neither Eastfield nor Onyx ever invoked the relocation provisions under the First
Amendment to Lease and Plaintiff has not been provided with notice of an intent to relocate
Plaintiff to new premises at the Eastfield Mall during the redevelopment project.
25. Upon learning of Onyx’s plans to close the Eastfield Mall, Plaintiff reached out to
Onyx to discuss the remaining term of the Lease.
26. Anton Melchionda contacted Rainbow’s General Counsel, Joan McGillycuddy,
and identified himself as representing Onyx Partners, the new owner of the Eastfield Mall, and
held himself out as authorized to negotiate with Rainbow on Onyx’s behalf.
27. Onyx, through Mr. Melchionda, confirmed that the Eastfield Mall would close on
July 15, 2023, and presented Rainbow with two options — Onyx would either buy out the Lease
at an agreed ‘make whole’ price or Rainbow could elect to enter a steeply-discounted ten-year
lease for premises two years hence in the redeveloped Eastfield Mall.
28. On June 21, 2023, Mr. Melchionda forwarded an e-mail Ms. McGillycuddy,
attaching a proposal for Rainbow to enter into a future lease in the redeveloped mall once
construction was completed. The forwarded e-mail included a message from Onyx’s real estate
broker and “contemplate[d] the net buy out of the lease they have now plus a bump to get to
$438,000.”
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Docket Number 2382CV00673
29. On June 22, 2023, Brian Kaplan, Vice President of Onyx Partners, followed up on
Mr. Melchionda’s June 21S e-mail to Ms. McGillycuddy. Mr. Kaplan stated that he
“underst[ood] from Anton that this is time sensitive so I wanted to follow up and see if there is
anything else you need from our team on this.” Mr. Kaplan also asked to be included in all
correspondence going forward so that he could “assist as needed.”
30. Ms. McGillycuddy replied via e-mail and noted that it was unfortunate that
Onyx’s proposal was not received by Rainbow sooner, “especially with the mall closing around
the corner.” Onyx never stated that Ms. McGillycuddy was incorrect and the mall would not be
closing. Ms. McGillycuddy requested that Onyx buy out the remainder of Rainbow’s term under
the current lease, and provide additional information so that Rainbow could continue discussing
a future lease in the redeveloped mall at market rates.
31. Ten minutes later, Mr. Melchionda responded to Ms. McGillycuddy’s e-mail and
stated that he would call her shortly. Later on June 22, 2023, Joan McGillycuddy, had a
telephone call from Mr. Melchionda. Ms. McGillycuddy confirmed to Mr. Melchionda that
Rainbow was electing to have Onyx buy out the Lease but would continue negotiations with
Onyx for a market-rate lease in the re-developed Mall.
32. Mr. Melchionda stated that Rainbow would buy out the Lease. Mr. Melchionda
stated that the buyout price would be in the range of $385,000 (as initially requested by
Rainbow) to $428,000 (which was the amount proposed by Onyx’s broker at Atlantic Realty in
the e-mail forwarded by Mr. Melchionda to Ms. McGillycuddy on June 21st. Ms. McGillycuddy
accepted on Rainbow’s behalf and asked Mr. Melchionda to send over the buyout documents.
33. On June 26, 2023, having not heard from Onyx since June 22™ Ms.
McGillycuddy e-mailed Mr. Melchionda and Mr. Kaplan. Receiving no response, she e-mailed
Date Filed 12/20/2023 5:27 PM
Superior Court - Norfolk
Docket Number 2382CV00673
them again on June 27, 2023, to request the promised buy-out proposal and proposed terms for a
future lease.
34. Instead, on June 28, 2023, Mr. Melchionda e-mailed Ms. McGillycuddy a
proposed Letter of Intent for a future lease, and not a buy-out proposal. Ms. McGillycuddy
thanked Mr. Melchionda for the proposal and reiterated that Rainbow needed to close out its
current Lease before committing to anew one. Ms. McGillycuddy again asked Mr. Melchionda
to send over the buyout document and offered to schedule a call to discuss.
35. On June 29, 2023, Ms. McGillycuddy e-mailed Mr. Melchionda and Mr. Kaplan,
again requesting that they provide Rainbow with a proposal to buy out the remaining term of
Rainbow’s lease, as promised by Mr. Melchionda. Ms. McGillycuddy’s e-mail stated that “Due
to the timing of the closing of this mall it is now a ‘time is ofthe essence’ to get the buyout
documents as well as the comprehensive Leasing Plan and supporting documents/information.
Happy to discuss by phone if that is helpful.”
36. Brian Kaplan replied later that day to provide a Leasing Plan but, again, no
buyout proposal. Ms. McGillycuddy responded later that evening to yet again request the buyout
proposal, and reiterated the request again on June 30, 2023.
37. On July 5, 2023, having heard nothing further from Onyx, Ms. McGillycuddy e-
mailed Mr. Melchionda and Mr. Kaplan to introduce them to Rainbow’s outside counsel, Gary
Buchman
38. On or about July 11, 2023, Plaintiffs counsel sent a letter to all Defendants
demanding that Onyx cease and desist from closing the Eastfield Mall and purporting to
terminate the Lease unless and until it had consummated a buyout of the Lease. Defendants have
not responded to the July 11, 2023 Letter.
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Docket Number 2382CV00673
39. Rainbow’s counsel continued reaching out to Mr. Kaplan and Mr. Melchionda
between July 14" and 20" by phone and e-mail to follow up on the promised buy-out documents
40. On July 20, 2023, Mr. Melchionda spoke on the phone with Mr. Buchman, and
again stated that Onyx was putting together a written proposal to buy out Rainbow’s lease.
41. On July 21, 2023, Mr. Melchionda e-mailed Ms. McGillycuddy to say that Onyx
was working on the buy out proposal, and thanked Ms. McGillycuddy for her patience.
42. On July 24, 2023, Mr. Kaplan e-mailed Ms. McGillycuddy and stated, regarding
the promised buy out proposal, “We apologize for the delay on this. We will have this over to
you tomorrow the latest.”
43. Onyx did not provide Rainbow with buy out documents on July 25, 2023, as
promised by Mr. Kaplan.
44. On July 26, 2023, Rainbow filed its Verified Complaint.
45. Onyx has never provided Rainbow with buyout documents for the Lease.
46. On information and belief, Onyx, through Brian Kaplan and Anton Melchionda,
entered into discussions with Plaintiff concerning a potential buyout and new lease, and made
intentional misrepresentations to Plaintiff that Onyx would buy out the Lease in an agreed price
range, with the intent to induce Plaintiff's reliance, string Plaintiff along, and lull Plaintiff into
complacency so that Plaintiff would not seek preliminary injunctive relief to prevent closure of
the Eastfield Mall prior to July 15, 2023. Plaintiff reasonably relied on these misrepresentations
to its detriment.
47. On information and belief, Onyx cut off contact with Plaintiff upon Plaintiff's
acceptance of Onyx’s offered buyout to coerce Plaintiff to drop its demand fora buyout and
instead to enter into a future lease at the redeveloped property on terms favorable to Onyx.
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Docket Number 2382CV00673
48. On information and belief, Onyx sought to leverage the mall closing and its false
promise of a buy out to extort Rainbow into relinquishing its rights under the Lease, and to extort
additional benefits from Rainbow to which Onyx was not entitled, including but not limited to
entering into a more expensive, less advantageous lease in the redeveloped mall, in lieu of
Rainbow’s right to be relocated to equivalent premises under the terms of the current Lease.
49. In direct violation of the Lease, on July 15, 2023, Onyx closed the Eastfield Mall
to commence a multi-year demolition and re-development process.
50. Onyx locked Plaintiff out of its Premises on or about July 15, 2023, by changing
the locks to all entrances to the Eastfield Mall.
51. Plaintiff gained access to the Premises thereafter only to remove Plaintiff's
property and inventory that remained trapped inside the Eastfield Mall.
52. Plaintiff has already paid in full all rent due at the time of filing of this Complaint,
pursuant to the Lease, yet is no longer able to operate at the Eastfield Mall.
53. Onyx’s stringing Plaintiff along to induce Plaintiff's reliance on Onyx’s
misrepresentations that it would buy out the Lease and Onyx’s subsequent constructive eviction
of Plaintiff constitute commercial extortion as Onyx has breached the Lease in an attempt to
extract benefits from Plaintiff to which it is not entitled.
54. Onyx has now audaciously, falsely, and frivolously claimed that Rainbow
abandoned the premises after Onyx permanently closed the mall, and in doing so breached its
Lease, seeking to further leverage Onyx’s prior breach to extort Rainbow into relinquishing its
Lease rights and abandon its pursuit of the buy out to which Mr. Melchionda already agreed on
behalf of Onyx.
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Docket Number 2382CV00673
COUNT I
(Breach of Contract)
55, Plaintiff repeats the allegations set forth in paragraphs 1 through 54 above.
56 The Lease, as amended, is an integrated, enforceable contract.
57, Plaintiff has fully performed its obligations under the Lease.
58 Defendants have breached the Lease by depriving Plaintiff of the quiet enjoyment
of and constructively evicting Plaintiff from its Premises at the Eastfield Mall.
59. Plaintiff has suffered damage from Defendants’ breaches in an amount to be
determined at trial.
COUNT II
(Breach of the Covenant of Good Faith and Fair Dealing)
60. Plaintiff incorporates the allegations set forth in paragraphs 1 through 59, above.
61. There is implied in every contract in the Commonwealth a covenant of good faith
and fair dealing, such that neither party may take action, or forebear from action, the effect of
which would be to deprive the other party of the reasonably anticipated fruits of the contract, or
to otherwise secure an unfair economic advantage.
62. The Lease A greement represents a valid and enforceable contract.
63. Defendants have throughout the relationship of the parties demonstrated a lack of
good faith by failing to inform Plaintiff of the impending sale of the Eastfield Mall, failing to
ensure that Plaintiff would be entitled to quiet enjoyment of the Premises through at least
January 31, 2026, and failing to inform Plaintiff as to whether Onyx was assuming Landlord’s
obligations under the Lease.
64. Defendants’ conduct has deprived Plaintiff of the reasonably anticipated fruits of
the Lease while allowing Landlord to secure an unfair economic advantage.
10
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Docket Number 2382CV00673
65. Defendants have breached the covenant of good faith and fair dealing for their
own benefit, opportunity and advantage, and Plaintiff has suffered damages as a result.
COUNT I
(Tortious Interference with Advantageous Business Relations)
66. Plaintiff repeats and restates the allegations set forth in Paragraphs 1 through 65
above.
67. Plaintiff has advantageous business relations with its regular customers at its
Eastfield Mall retail location.
68. Defendants have known at all times of Plaintiff's advantageous business relations
with its customers.
69. Defendants have intentionally and maliciously interfered with Plaintiff's
advantageous business relations with its customers by its conduct described above, including,
without limitation, its closure of the Eastfield Mall, constructive eviction of Plaintiff, and
retention of Plaintiff's property and inventory.
70. Due to Defendants’ unjustified and intentional conduct, Plaintiff has suffered lost
advantages that it otherwise would have enjoyed as a result of its advantageous relationships
with its customers.
71. As a result of Defendants’ tortious interference with its advantageous relations,
Plaintiff has been damaged in an amount to be determined at trial.
COUNT IV
(Unfair and Deceptive Business Practices in Violation of G.L. c. 93A, § 11)
72. Plaintiff repeats and restates the allegations set forth in Paragraphs 1 through 71
above.
11
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Docket Number 2382CV00673
73. Atall relevant times, Plaintiff and Defendants were engaged in trade or
commerce. Accordingly, Plaintiff is among the persons and entities entitled to the protections of
G.L. c. 93A.
74. Defendants’ conduct described above, including but not limited to the purported
termination of Plaintiffs tenancy, constructive eviction of Plaintiff, prohibiting Plaintiff from
recording notice of its Lease, concealing the Property’s sale from Plaintiff, stringing Plaintiff
along with misrepresentations to prevent Plaintiff from exercising its rights under the Lease,
seeking to leverage their breaches of the Lease and Plaintiff's reasonable reliance on their
misrepresentations to extract benefits from Plaintiff to which Defendants were not entitled, and
closing, demolishing, and locking Plaintiff out of the Eastfield Mall, constitutes unfair and
deceptive acts and practices under G.L. c. 93A.
75. Defendants unfair and deceptive practices took place primarily and substantially
within the Commonwealth.
76. Defendants’ intentional, willful, and knowing conduct, as described above,
constitutes unfair and deceptive trade practices that proximately caused damages to Plaintiff,
including the loss of money, loss of property, and deprivation of quiet enjoyment of Plaintiff's
premises.
77. Defendants are liable for the damages suffered by Plaintiff as a result of
Defendants’ unfair and deceptive acts and practice in an amount to be determined at trial, and
Plaintiff is entitled to treble damages, attorneys’ fees, and costs for Defendants’ knowing and
willful violations of G.L. c. 93A.
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Docket Number 2382CV00673
COUNT V
(Unfair and Deceptive Business Practices in Violation of G.L. c. 93A, § 11
against Mr. Melchionda and Mr. Kaplan)
78 Plaintiff repeats and restates the allegations set forth in Paragraphs 1 through 77
above.
79 Atall relevant times, Plaintiff and Defendants were engaged in trade or
commerce. Accordingly, Plaintiff is among the persons and entities entitled to the protections of
G.L. c. 93A.
80. Defendants’ conduct described above, including but not limited to the purported
termination of Plaintiff's tenancy, locking Plaintiff out of the Eastfield Mall, closing and
demolishing the Mall in violation of Plaintiffs Lease rights, stringing Plaintiff along with
misrepresentations to prevent Plaintiff from exercising its rights under the Lease, and seeking to
leverage the breach of the Lease and Plaintiffs reasonable reliance on their misrepresentations to
extract benefits from Plaintiff to which Defendants were not entitled, constitutes unfair and
deceptive acts and practices under G.L. c. 93A.
81. Defendants’ unfair and deceptive practices took place primarily and substantially
within the Commonwealth.
82. Defendants’ intentional, willful, and knowing conduct, as described above,
constitutes unfair and deceptive trade practices that proximately caused damages to Plaintiff,
including the loss of money, loss of property, lost profits and deprivation of quiet enjoyment of
Plaintiff's premises.
83. As officers of Onyx, Mr. Melchionda and Mr. Kaplan are personally liable for the
tortious acts and violations of G.L. c. 93A that they committed on behalf of Onyx.
13
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Docket Number 2382CV00673
84. Mr. Melchionda and Mr. Kaplan are jointly and severally liable for the damages
suffered by Plaintiff
as a result of Defendants’ unfair and deceptive acts and practice in an
amount to be determined at trial, and Plaintiff is entitled to treble damages, attorneys’ fees, and
costs for Defendants’ knowing and willful violations of G.L. c. 93A.
COUNT VI
(Equitable Injunctive Relief/Specific Performance)
85. Plaintiff repeats the allegations set forth in paragraphs 1 through 84, above.
86. Plaintiff is entitled to operate its retail store at the Eastfield Mall through
January 31, 2026 pursuant to the Lease.
87. Plaintiff is entitled to be relocated to new premises at the Eastfield Mall
substantially equivalent to its premises under the Lease and under the same terms and conditions
as the Lease, pursuant to the First Amendment.
88. Plaintiff requests that the Court preliminarily and permanently enjoin and restrain
Defendants from constructively evicting Plaintiff, interfering with Plaintiff's use and quiet
enjoyment of its Premises at the Eastfield Mall, and from purporting to terminate the Lease.
89. Plaintiff requests that the Court issue injunctive relief equitably tolling the Lease
and ordering Defendants to comply with Section 7 of the First Amendment.
90. Monetary damages will be insufficient to redress the harm caused by Defendants’
constructive eviction of Plaintiff.
91. Absent injunctive relief, Plaintiff will be irreparably harmed by Defendants’
conduct in flagrant disregard of Defendants’ obligations under the Lease. On the other hand,
entry of an injunction will cause no harm to Defendants by merely holding Defendants to their
contractual obligations.
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Docket Number 2382CV00673
PRAYERS FOR RELIEF
WHEREFORE, Fashion Gallery, Inc. d/b/a Rainbow prays that the Court:
A Enter judgment in Plaintiffs favor on all Counts of its Verified Complaint and
award it damages, trebled under G.L. c. 93A, in an amount to be determined at
trial;
Issue temporary and permanent injunctive relief ordering Defendants to comply
with Landlord’s obligations under the Lease and forbidding Defendants from
interfering with Plaintiff's rights under the Lease;
Award Plaintiff its reasonable attorneys’ fees, costs, and expenses; and
Award Plaintiff such other relief as the Court deems just and proper.
FASHION GALLERY, INC. D/B/A
RAINBOW
BY ITS ATTORNEYS,
/s/David Michel
David A. Michel BBO #682122
Kyle W. Cunningham BBO #709081
SHERIN AND LODGEN LLP
101 Federal Street
Boston, Massachusetts 02110
(617) 646-2000
damichel@ sherin.com
Dated: November 22, 2023 kwcunningham@ sherin.com
15
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Docket Number 2382CV00673
VERIFICATION
I, Joan McGillycuddy, do depose and state that 1 am General Counsel of Fashion Gallery,
Inc. d/b/a Rainbow, and am authorized to sign this Verification, that I have read the Amended
Verified Complaint in this Action and am familiar with the contents thereof, that the facts set
forth therein are true of my own personal knowledge, except for those facts stated upon
information and belief, and as to those facts I believe them to be true, and that no material facts
have been omitted from the Verified Complaint.
\
Signed under the penalties of perjury this de y day of November,.2023.
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Docket Number 2382CV00673
ExhibitA
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Docket Number 2382CV00673
LEASE
Between
EASTFIELD ASSOCIATES, LLC, Landlord
And
FASHION GALLERY, INC.,
d/b/a Rainbow, Tenant
Draft: 7”
Date: November 10, 2006
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Docket Number 2382CV00673
TABLE OF CONTENTS
ARTICLEI DEFINITIONS AND ATTACHMENTS
Section 1.1. Certain Defined Terms
Section 1.2. Additional Defined Terms
Section 1.3. Attachments
ARTICLEIL PREM
Section 2.1. Demise
ARTICLE Wl TERM.
Section 3.1. Term
Section 3.2. Termination
Section 3.3. Holding Over
ARTICLEIV USE
Section 4.1. Prompt Occupancy and Use
Section 4.2. Storage and Office Areas
Section 4.3. Tenant Trade Name
Section 4.4. Store Hours
ARTICLE V RENTAL
Section 5.1. Rentals Payable
Section 5.2. Annual Basic Rental
Section 5.3. Annual Percentage Rental
Section 5.4
Section 5.5
10
Section 5.6. Statements(¢ Gross Sales
Section 5.7. Tenant's Records 10
Section 5.8. Payment of Rental 11
Section 5.9. Advance Rental 12
Section 5.10. Future Expansion 12
ARTICLE VI TAXES 12
Section 6.1. Tenant to Pay Proportionate Sharegg Taxes 12
13
Section 6.2. Payment gg Proportionate Sharegg Taxes
Section 64 13
Section 6.4. Taxeson Rental 13
ARTICLE VIL IMPROVEMENTS
Section 7.1' Tenant's Improvements
Section 7.2. Effectog Openinggpt Business
Section 7.3. Mechanic's Liens
15
Section 7.4. Tenant's Leasehold Improvements and Trade Fixtures
ARTICLE VIII OPERATIONS
Section 8.1. Operations by Tenant
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17
Section 8.2. Signs and Advertising
17
Section 8.3, Paintingond Displays by Tenant
Section 8.4. Trash Removal Service
Section 8.5. Permitted Use Disclaimer 18
Section 8.6. Hazardous Substances 19
ARTICLEIX REPAIRS AND ALTERATIONS 20
ZU
Section 9.1. Repairs To Be Made By Landlord
I:\Clients\Eastfield Mall\Leases\Rainbow Apparel 5-7-9 - #7.doc
November 10, 2006
-i-
Date Filed 12/20/2023 5:27 PM
Superior Court - Norfolk
Docket Number 2382CV00673
Section 9.2. Repairs To Be Made By Tenant see 21
Section 9.3. Damage(o Premises 22
Section 9.4, Alterations by Tenant 22
22
Section 9.5. Changesand Additions to Shopping Center
Section 9.6. Roof and Walls 23
ARTICLE X COMMON AREAS 23
Section 10.1 Use of Common Areas
Section 10.2 Management and Operationgg Common Areas
B
Section 10.3 Employee Parking Areas 24
Section 10.4, Tenant to Share Bxpenses 24
Section 10.5 25
Section 10.6. Mall Heating, Ventilating and Air. 4
Section 10.7. Renovation or Expansiongg Common Areas
Conditioning Equipment Contribution Ratt
Preview
Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 19 Docketed 12/21/2023 COMMONWEALTH OF MASSACHUSEITS NORFOLK, SS. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 2382CV00673 FASHION GALLERY, INC. d/b/a RAINBOW Plaintiff, Vv. ONYX PARTNERS, LLC, ONYX SPRINGFIELD CROSSING, LLC, ONYX SPRINGFIELD CROSSING MANAGER, LLC, and EASTFIELD ASSOCIATES, LLC, Defendants. FASHION GALLERY, INC. d/b/a RAINBOW’S MOTION TO AMEND THE VERIFIED COMPLAINT (Hearing Requested) Pursuant to Mass. R. Civ. P 15(a), Plaintiff Fashion Gallery, Inc. d/b/a Rainbow (‘Rainbow’) moves for leave to amend the Verified Complaint in this action to add Anton Melchionda and Brian Kaplan as parties to this action. A Proposed Amended Verified Complaint is attached hereto as Exhibit A. In support of its Motion, Rainbow relies on its supporting Memorandum of Law. 4866-6295-9250.v1 Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 WHEREFORE, Rainbow requests that the Court grant its Motion to Amend and allow Rainbow to file the Amended Verified Complaint attached as Exhibit A. Respectfully Submitted, FASION GALLERY, INC. d/b/a RAINBOW By its attomeys, /s/ Kyle W. Cunnii David A. Michel BBO #682122 Kyle W. Cunningham BBO #709081 SHERIN AND LODGEN LLP 101 Federal Street Boston, Massachusetts 02110 (617) 646-2000 damichel @sherin.com kwcunningham@sherin.com Dated: 11/22/2023 RULE 9C CERTIFICATION I, David A. Michel, hereby certify, pursuant to Superior Court Rule 9C(a), I conferred with defendants’ counsel Kelly Frey by telephone on November 14, 2023 at 3:00 PM ina good faith effort to narrow areas of disagreement conceming this Motion. /s/DavidA. Michel CERTIFICATE OF SERVICE I, Kyle W. Cunningham, hereby certify that on November 22, 2023, I served the above document by email upon: Kelly Frey, Esq. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. One Financial Center Boston, Massachusetts 02111 (617) 348-1827 kifrey@mintz.com /s[Kyle W. Cunnii -2 Date Filed 12/20/2023 5:27 PM Superior Court- Norfolk Docket Number 2382CV00673 ExhibitA Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 COMMONWEALTH OF MASSACHUSETTS NORFOLK, SS SUPERIOR COURT CIVIL ACTION NO. 2382CV 00673 aaa FASHION GALLERY, INC. d/b/a RAINBOW Plaintiff, Vv. ONYX PARTNERS, LLC ONYX SPRINGFIELD CROSSING LLC, ONYX SPRINGFIELD CROSSING MANAGER LLC EASTFIELD ASSOCIATES, LLC, BRIAN KAPLAN, and ANTON MELCHIONDA Defendants. aaa AMENDED VERIFIED COMPLAINT PARTIES 1 Plaintiff, Fashion Gallery, Inc. d/b/a Rainbow is a New Jersey corporation with a principal place of business at 1000 Pennsylvania Avenue, Brooklyn, New Y ork. 2 Defendant, Eastfield Associates, LLC (“Eastfield”) is a Delaware limited liability company with a principal place of business located at 56 Livingston Avenue, Suite 200, Roseland, New Jersey. 3 Defendant, Onyx Springfield Crossing LLC, upon information and belief, is a Delaware limited liability company with a principal place of business located at 200 Reservoir Street, Suite 306, Needham, Massachusetts. Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 4 Defendant Onyx Springfield Crossing Manager LLC, upon information and belief, is a Massachusetts limited liability company with a principal place of business located at 200 Reservoir Street, Suite 306, Needham, Massachusetts. 5. Defendant, Onyx Partners, LLC, upon information and belief, is a Delaware limited liability company with a principal place of business located at 200 Reservoir Street, Suite 306, Needham, Massachusetts 02494. Onyx Partners, LLC, Onyx Springfield Crossing Manager LLC, and Onyx Springfield Crossing LLC are collectively referred herein as “Onyx”. 6 Defendant Anton Melchionda is the Manager of defendant Onyx Partners, LLC. 7 Defendant Brian Kaplan is the Vice President of Development of Defendant Onyx Partners, LLC. VENUE AND JURISDICTION 8 This Court has subject matter jurisdiction over this action pursuant to G.L. c. 212, §§3 and 4, G.L. c. 214, §1, and G.L. c. 231A, §§1 and 2 and because the amount in controversy exceeds the sum of $50,000. 9 This Court has personal jurisdiction over the Defendants pursuant to G.L. c. 223A, §§2 and 3, because they are organized in Massachusetts, regularly transact business in Massachusetts, own real estate in Massachusetts, and/or maintain a principal residence and/or principal place of business in Massachusetts. 10. Norfolk County is the proper venue for this action pursuant to G.L. c. 223, §8 as Defendants Onyx Partners, LLC, Onyx Springfield Crossing Manager LLC, and Onyx Springfield Crossing LLC have a principal place of business in Norfolk County. Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 FACTS 11. On or about October 24, 2010, Eastfield entered into a lease agreement with Plaintiff (as amended, the “Lease”) whereby Eastfield agreed to lease Premises to Plaintiff located at the Eastfield Mall, 1655 Boston Post Road, Springfield, Hampden County, Massachusetts. A true and accurate copy of the Lease is attached hereto as Exhibit A. 12. On or about January 7, 2016, Eastfield and Plaintiff amended the Lease. A true and accurate copy of the First Amendment to Lease is attached hereto as Exhibit B. 13. On July 24, 2020, Plaintiff exercised its right and option to further extend the term of the Lease for an additional five (5) years for the period commencing February 1, 2021, through and including January 31, 2026. A true and accurate copy of the July 24, 2020 Extension Letter is attached hereto as Exhibit C. 14. The Lease requires that “[t]his Lease and the covenants and conditions herein contained shall inure to the benefit of and be binding upon Landlord, its successors and assigns, and shall be binding upon Tenant, its successors and assigns and shall inure to the benefit of Tenant... Upon any sale or other transfer by Landlord of its interest in the Premises and in this Lease, and the assumption by Landlord’s transferee of the obligations of Landlord hereunder, Landlord shall be relieved of any obligations under this Lease accruing hereafter.” See Exhibit A, Section 20.6. Plaintiff does not know whether Onyx has assumed the obligations of Landlord under the Lease, therefore Plaintiff is proceeding against both Onyx and Eastfield until the proper Landlord party can be determined, through discovery or otherwise. 15. Plaintiff is entitled to “peaceably have, hold and enjoy the Premises without any interruption or disturbance from Landlord, or anyone lawfully or equitably claiming through or under Landlord.” See ExhibitA, Addendum, p. 56. Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 16. The Lease prohibited Plaintiff from recording a Notice of Lease or Memorandum of Lease pursuant to G.L. c. 183, §4. 17. Onyx purchased the Eastfield Mall from Eastfield on or about April 19, 2023. At no point did Defendants notify Plaintiff that Onyx had purchased the Eastfield Mall. 18. Onyx had actual notice of the Lease prior to its April 19, 2023, purchase of the Property. On or about Thursday, March 23, 2023, Onyx’s real-estate broker for the purchase of the Eastfield Mall, Chris Kelly of Atlantic Retail, e-mailed Brian Kaplan of Onyx, contemplating a “net buy out” of Plaintiff's lease for $438,000. 19. Eastfield did not notify Plaintiff of its impending sale of the Eastfield Mall to Onyx and did not approach Plaintiff about buying out the remaining term of the Lease. 20. Plaintiff only learned of the sale through news reports, which included reference to Onyx’s plan to close the Mall for a two-year redevelopment project that would convert the Mall to a mixed-use residential and commercial site. 21. The Lease provides that, in the event that Landlord undertakes a “major expansion or redevelopment” of the Eastfield Mall: Landlord shall have the right... to require Tenant to relocate its operation, at Landlord’s expense, to other premises (the “New Premises”) in another part of the Shopping Center in accordance with the following: (i) Landlord shall notify Tenant, at least ninety (90) days prior to the proposed relocation date, of Landlord’s intention to relocate Tenant’s operation to the New Premises; (ii) The proposed relocation date and the size, configuration and location of the New Premises shall be set forth in the Landlord’s notice; and (iii) The New Premises shall be substantially the same size and configuration as [Tenant’s current] Premises Exhibit B, First Amendment to Lease, § 7(A) (emphasis added). Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 22. Plaintiff cannot be forced to vacate, and continues to hold full “right, title, and interest in and to” its current Premises until “the date the New Premises are delivered to Tenant with Tenant’s furniture, trade fixtures, equipment and inventory therein” from and after which “the New Premises shall be deemed demised hereunder.” Exhibit B, § 7(D). 23. As such, regardless of Onyx’s current redevelopment plans, Rainbow is entitled to continue operating at the Eastfield Mall, without interruption, through the end of 2026. 24. Neither Eastfield nor Onyx ever invoked the relocation provisions under the First Amendment to Lease and Plaintiff has not been provided with notice of an intent to relocate Plaintiff to new premises at the Eastfield Mall during the redevelopment project. 25. Upon learning of Onyx’s plans to close the Eastfield Mall, Plaintiff reached out to Onyx to discuss the remaining term of the Lease. 26. Anton Melchionda contacted Rainbow’s General Counsel, Joan McGillycuddy, and identified himself as representing Onyx Partners, the new owner of the Eastfield Mall, and held himself out as authorized to negotiate with Rainbow on Onyx’s behalf. 27. Onyx, through Mr. Melchionda, confirmed that the Eastfield Mall would close on July 15, 2023, and presented Rainbow with two options — Onyx would either buy out the Lease at an agreed ‘make whole’ price or Rainbow could elect to enter a steeply-discounted ten-year lease for premises two years hence in the redeveloped Eastfield Mall. 28. On June 21, 2023, Mr. Melchionda forwarded an e-mail Ms. McGillycuddy, attaching a proposal for Rainbow to enter into a future lease in the redeveloped mall once construction was completed. The forwarded e-mail included a message from Onyx’s real estate broker and “contemplate[d] the net buy out of the lease they have now plus a bump to get to $438,000.” Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 29. On June 22, 2023, Brian Kaplan, Vice President of Onyx Partners, followed up on Mr. Melchionda’s June 21S e-mail to Ms. McGillycuddy. Mr. Kaplan stated that he “underst[ood] from Anton that this is time sensitive so I wanted to follow up and see if there is anything else you need from our team on this.” Mr. Kaplan also asked to be included in all correspondence going forward so that he could “assist as needed.” 30. Ms. McGillycuddy replied via e-mail and noted that it was unfortunate that Onyx’s proposal was not received by Rainbow sooner, “especially with the mall closing around the corner.” Onyx never stated that Ms. McGillycuddy was incorrect and the mall would not be closing. Ms. McGillycuddy requested that Onyx buy out the remainder of Rainbow’s term under the current lease, and provide additional information so that Rainbow could continue discussing a future lease in the redeveloped mall at market rates. 31. Ten minutes later, Mr. Melchionda responded to Ms. McGillycuddy’s e-mail and stated that he would call her shortly. Later on June 22, 2023, Joan McGillycuddy, had a telephone call from Mr. Melchionda. Ms. McGillycuddy confirmed to Mr. Melchionda that Rainbow was electing to have Onyx buy out the Lease but would continue negotiations with Onyx for a market-rate lease in the re-developed Mall. 32. Mr. Melchionda stated that Rainbow would buy out the Lease. Mr. Melchionda stated that the buyout price would be in the range of $385,000 (as initially requested by Rainbow) to $428,000 (which was the amount proposed by Onyx’s broker at Atlantic Realty in the e-mail forwarded by Mr. Melchionda to Ms. McGillycuddy on June 21st. Ms. McGillycuddy accepted on Rainbow’s behalf and asked Mr. Melchionda to send over the buyout documents. 33. On June 26, 2023, having not heard from Onyx since June 22™ Ms. McGillycuddy e-mailed Mr. Melchionda and Mr. Kaplan. Receiving no response, she e-mailed Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 them again on June 27, 2023, to request the promised buy-out proposal and proposed terms for a future lease. 34. Instead, on June 28, 2023, Mr. Melchionda e-mailed Ms. McGillycuddy a proposed Letter of Intent for a future lease, and not a buy-out proposal. Ms. McGillycuddy thanked Mr. Melchionda for the proposal and reiterated that Rainbow needed to close out its current Lease before committing to anew one. Ms. McGillycuddy again asked Mr. Melchionda to send over the buyout document and offered to schedule a call to discuss. 35. On June 29, 2023, Ms. McGillycuddy e-mailed Mr. Melchionda and Mr. Kaplan, again requesting that they provide Rainbow with a proposal to buy out the remaining term of Rainbow’s lease, as promised by Mr. Melchionda. Ms. McGillycuddy’s e-mail stated that “Due to the timing of the closing of this mall it is now a ‘time is ofthe essence’ to get the buyout documents as well as the comprehensive Leasing Plan and supporting documents/information. Happy to discuss by phone if that is helpful.” 36. Brian Kaplan replied later that day to provide a Leasing Plan but, again, no buyout proposal. Ms. McGillycuddy responded later that evening to yet again request the buyout proposal, and reiterated the request again on June 30, 2023. 37. On July 5, 2023, having heard nothing further from Onyx, Ms. McGillycuddy e- mailed Mr. Melchionda and Mr. Kaplan to introduce them to Rainbow’s outside counsel, Gary Buchman 38. On or about July 11, 2023, Plaintiffs counsel sent a letter to all Defendants demanding that Onyx cease and desist from closing the Eastfield Mall and purporting to terminate the Lease unless and until it had consummated a buyout of the Lease. Defendants have not responded to the July 11, 2023 Letter. Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 39. Rainbow’s counsel continued reaching out to Mr. Kaplan and Mr. Melchionda between July 14" and 20" by phone and e-mail to follow up on the promised buy-out documents 40. On July 20, 2023, Mr. Melchionda spoke on the phone with Mr. Buchman, and again stated that Onyx was putting together a written proposal to buy out Rainbow’s lease. 41. On July 21, 2023, Mr. Melchionda e-mailed Ms. McGillycuddy to say that Onyx was working on the buy out proposal, and thanked Ms. McGillycuddy for her patience. 42. On July 24, 2023, Mr. Kaplan e-mailed Ms. McGillycuddy and stated, regarding the promised buy out proposal, “We apologize for the delay on this. We will have this over to you tomorrow the latest.” 43. Onyx did not provide Rainbow with buy out documents on July 25, 2023, as promised by Mr. Kaplan. 44. On July 26, 2023, Rainbow filed its Verified Complaint. 45. Onyx has never provided Rainbow with buyout documents for the Lease. 46. On information and belief, Onyx, through Brian Kaplan and Anton Melchionda, entered into discussions with Plaintiff concerning a potential buyout and new lease, and made intentional misrepresentations to Plaintiff that Onyx would buy out the Lease in an agreed price range, with the intent to induce Plaintiff's reliance, string Plaintiff along, and lull Plaintiff into complacency so that Plaintiff would not seek preliminary injunctive relief to prevent closure of the Eastfield Mall prior to July 15, 2023. Plaintiff reasonably relied on these misrepresentations to its detriment. 47. On information and belief, Onyx cut off contact with Plaintiff upon Plaintiff's acceptance of Onyx’s offered buyout to coerce Plaintiff to drop its demand fora buyout and instead to enter into a future lease at the redeveloped property on terms favorable to Onyx. Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 48. On information and belief, Onyx sought to leverage the mall closing and its false promise of a buy out to extort Rainbow into relinquishing its rights under the Lease, and to extort additional benefits from Rainbow to which Onyx was not entitled, including but not limited to entering into a more expensive, less advantageous lease in the redeveloped mall, in lieu of Rainbow’s right to be relocated to equivalent premises under the terms of the current Lease. 49. In direct violation of the Lease, on July 15, 2023, Onyx closed the Eastfield Mall to commence a multi-year demolition and re-development process. 50. Onyx locked Plaintiff out of its Premises on or about July 15, 2023, by changing the locks to all entrances to the Eastfield Mall. 51. Plaintiff gained access to the Premises thereafter only to remove Plaintiff's property and inventory that remained trapped inside the Eastfield Mall. 52. Plaintiff has already paid in full all rent due at the time of filing of this Complaint, pursuant to the Lease, yet is no longer able to operate at the Eastfield Mall. 53. Onyx’s stringing Plaintiff along to induce Plaintiff's reliance on Onyx’s misrepresentations that it would buy out the Lease and Onyx’s subsequent constructive eviction of Plaintiff constitute commercial extortion as Onyx has breached the Lease in an attempt to extract benefits from Plaintiff to which it is not entitled. 54. Onyx has now audaciously, falsely, and frivolously claimed that Rainbow abandoned the premises after Onyx permanently closed the mall, and in doing so breached its Lease, seeking to further leverage Onyx’s prior breach to extort Rainbow into relinquishing its Lease rights and abandon its pursuit of the buy out to which Mr. Melchionda already agreed on behalf of Onyx. Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 COUNT I (Breach of Contract) 55, Plaintiff repeats the allegations set forth in paragraphs 1 through 54 above. 56 The Lease, as amended, is an integrated, enforceable contract. 57, Plaintiff has fully performed its obligations under the Lease. 58 Defendants have breached the Lease by depriving Plaintiff of the quiet enjoyment of and constructively evicting Plaintiff from its Premises at the Eastfield Mall. 59. Plaintiff has suffered damage from Defendants’ breaches in an amount to be determined at trial. COUNT II (Breach of the Covenant of Good Faith and Fair Dealing) 60. Plaintiff incorporates the allegations set forth in paragraphs 1 through 59, above. 61. There is implied in every contract in the Commonwealth a covenant of good faith and fair dealing, such that neither party may take action, or forebear from action, the effect of which would be to deprive the other party of the reasonably anticipated fruits of the contract, or to otherwise secure an unfair economic advantage. 62. The Lease A greement represents a valid and enforceable contract. 63. Defendants have throughout the relationship of the parties demonstrated a lack of good faith by failing to inform Plaintiff of the impending sale of the Eastfield Mall, failing to ensure that Plaintiff would be entitled to quiet enjoyment of the Premises through at least January 31, 2026, and failing to inform Plaintiff as to whether Onyx was assuming Landlord’s obligations under the Lease. 64. Defendants’ conduct has deprived Plaintiff of the reasonably anticipated fruits of the Lease while allowing Landlord to secure an unfair economic advantage. 10 Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 65. Defendants have breached the covenant of good faith and fair dealing for their own benefit, opportunity and advantage, and Plaintiff has suffered damages as a result. COUNT I (Tortious Interference with Advantageous Business Relations) 66. Plaintiff repeats and restates the allegations set forth in Paragraphs 1 through 65 above. 67. Plaintiff has advantageous business relations with its regular customers at its Eastfield Mall retail location. 68. Defendants have known at all times of Plaintiff's advantageous business relations with its customers. 69. Defendants have intentionally and maliciously interfered with Plaintiff's advantageous business relations with its customers by its conduct described above, including, without limitation, its closure of the Eastfield Mall, constructive eviction of Plaintiff, and retention of Plaintiff's property and inventory. 70. Due to Defendants’ unjustified and intentional conduct, Plaintiff has suffered lost advantages that it otherwise would have enjoyed as a result of its advantageous relationships with its customers. 71. As a result of Defendants’ tortious interference with its advantageous relations, Plaintiff has been damaged in an amount to be determined at trial. COUNT IV (Unfair and Deceptive Business Practices in Violation of G.L. c. 93A, § 11) 72. Plaintiff repeats and restates the allegations set forth in Paragraphs 1 through 71 above. 11 Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 73. Atall relevant times, Plaintiff and Defendants were engaged in trade or commerce. Accordingly, Plaintiff is among the persons and entities entitled to the protections of G.L. c. 93A. 74. Defendants’ conduct described above, including but not limited to the purported termination of Plaintiffs tenancy, constructive eviction of Plaintiff, prohibiting Plaintiff from recording notice of its Lease, concealing the Property’s sale from Plaintiff, stringing Plaintiff along with misrepresentations to prevent Plaintiff from exercising its rights under the Lease, seeking to leverage their breaches of the Lease and Plaintiff's reasonable reliance on their misrepresentations to extract benefits from Plaintiff to which Defendants were not entitled, and closing, demolishing, and locking Plaintiff out of the Eastfield Mall, constitutes unfair and deceptive acts and practices under G.L. c. 93A. 75. Defendants unfair and deceptive practices took place primarily and substantially within the Commonwealth. 76. Defendants’ intentional, willful, and knowing conduct, as described above, constitutes unfair and deceptive trade practices that proximately caused damages to Plaintiff, including the loss of money, loss of property, and deprivation of quiet enjoyment of Plaintiff's premises. 77. Defendants are liable for the damages suffered by Plaintiff as a result of Defendants’ unfair and deceptive acts and practice in an amount to be determined at trial, and Plaintiff is entitled to treble damages, attorneys’ fees, and costs for Defendants’ knowing and willful violations of G.L. c. 93A. -12- Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 COUNT V (Unfair and Deceptive Business Practices in Violation of G.L. c. 93A, § 11 against Mr. Melchionda and Mr. Kaplan) 78 Plaintiff repeats and restates the allegations set forth in Paragraphs 1 through 77 above. 79 Atall relevant times, Plaintiff and Defendants were engaged in trade or commerce. Accordingly, Plaintiff is among the persons and entities entitled to the protections of G.L. c. 93A. 80. Defendants’ conduct described above, including but not limited to the purported termination of Plaintiff's tenancy, locking Plaintiff out of the Eastfield Mall, closing and demolishing the Mall in violation of Plaintiffs Lease rights, stringing Plaintiff along with misrepresentations to prevent Plaintiff from exercising its rights under the Lease, and seeking to leverage the breach of the Lease and Plaintiffs reasonable reliance on their misrepresentations to extract benefits from Plaintiff to which Defendants were not entitled, constitutes unfair and deceptive acts and practices under G.L. c. 93A. 81. Defendants’ unfair and deceptive practices took place primarily and substantially within the Commonwealth. 82. Defendants’ intentional, willful, and knowing conduct, as described above, constitutes unfair and deceptive trade practices that proximately caused damages to Plaintiff, including the loss of money, loss of property, lost profits and deprivation of quiet enjoyment of Plaintiff's premises. 83. As officers of Onyx, Mr. Melchionda and Mr. Kaplan are personally liable for the tortious acts and violations of G.L. c. 93A that they committed on behalf of Onyx. 13 Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 84. Mr. Melchionda and Mr. Kaplan are jointly and severally liable for the damages suffered by Plaintiff as a result of Defendants’ unfair and deceptive acts and practice in an amount to be determined at trial, and Plaintiff is entitled to treble damages, attorneys’ fees, and costs for Defendants’ knowing and willful violations of G.L. c. 93A. COUNT VI (Equitable Injunctive Relief/Specific Performance) 85. Plaintiff repeats the allegations set forth in paragraphs 1 through 84, above. 86. Plaintiff is entitled to operate its retail store at the Eastfield Mall through January 31, 2026 pursuant to the Lease. 87. Plaintiff is entitled to be relocated to new premises at the Eastfield Mall substantially equivalent to its premises under the Lease and under the same terms and conditions as the Lease, pursuant to the First Amendment. 88. Plaintiff requests that the Court preliminarily and permanently enjoin and restrain Defendants from constructively evicting Plaintiff, interfering with Plaintiff's use and quiet enjoyment of its Premises at the Eastfield Mall, and from purporting to terminate the Lease. 89. Plaintiff requests that the Court issue injunctive relief equitably tolling the Lease and ordering Defendants to comply with Section 7 of the First Amendment. 90. Monetary damages will be insufficient to redress the harm caused by Defendants’ constructive eviction of Plaintiff. 91. Absent injunctive relief, Plaintiff will be irreparably harmed by Defendants’ conduct in flagrant disregard of Defendants’ obligations under the Lease. On the other hand, entry of an injunction will cause no harm to Defendants by merely holding Defendants to their contractual obligations. 14 Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 PRAYERS FOR RELIEF WHEREFORE, Fashion Gallery, Inc. d/b/a Rainbow prays that the Court: A Enter judgment in Plaintiffs favor on all Counts of its Verified Complaint and award it damages, trebled under G.L. c. 93A, in an amount to be determined at trial; Issue temporary and permanent injunctive relief ordering Defendants to comply with Landlord’s obligations under the Lease and forbidding Defendants from interfering with Plaintiff's rights under the Lease; Award Plaintiff its reasonable attorneys’ fees, costs, and expenses; and Award Plaintiff such other relief as the Court deems just and proper. FASHION GALLERY, INC. D/B/A RAINBOW BY ITS ATTORNEYS, /s/David Michel David A. Michel BBO #682122 Kyle W. Cunningham BBO #709081 SHERIN AND LODGEN LLP 101 Federal Street Boston, Massachusetts 02110 (617) 646-2000 damichel@ sherin.com Dated: November 22, 2023 kwcunningham@ sherin.com 15 Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 VERIFICATION I, Joan McGillycuddy, do depose and state that 1 am General Counsel of Fashion Gallery, Inc. d/b/a Rainbow, and am authorized to sign this Verification, that I have read the Amended Verified Complaint in this Action and am familiar with the contents thereof, that the facts set forth therein are true of my own personal knowledge, except for those facts stated upon information and belief, and as to those facts I believe them to be true, and that no material facts have been omitted from the Verified Complaint. \ Signed under the penalties of perjury this de y day of November,.2023. {} @ 1) Lk y -16- Date Filed 12/20/2023 5:27 PM Superior Court- Norfolk Docket Number 2382CV00673 ExhibitA Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 LEASE Between EASTFIELD ASSOCIATES, LLC, Landlord And FASHION GALLERY, INC., d/b/a Rainbow, Tenant Draft: 7” Date: November 10, 2006 Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 TABLE OF CONTENTS ARTICLEI DEFINITIONS AND ATTACHMENTS Section 1.1. Certain Defined Terms Section 1.2. Additional Defined Terms Section 1.3. Attachments ARTICLEIL PREM Section 2.1. Demise ARTICLE Wl TERM. Section 3.1. Term Section 3.2. Termination Section 3.3. Holding Over ARTICLEIV USE Section 4.1. Prompt Occupancy and Use Section 4.2. Storage and Office Areas Section 4.3. Tenant Trade Name Section 4.4. Store Hours ARTICLE V RENTAL Section 5.1. Rentals Payable Section 5.2. Annual Basic Rental Section 5.3. Annual Percentage Rental Section 5.4 Section 5.5 10 Section 5.6. Statements(¢ Gross Sales Section 5.7. Tenant's Records 10 Section 5.8. Payment of Rental 11 Section 5.9. Advance Rental 12 Section 5.10. Future Expansion 12 ARTICLE VI TAXES 12 Section 6.1. Tenant to Pay Proportionate Sharegg Taxes 12 13 Section 6.2. Payment gg Proportionate Sharegg Taxes Section 64 13 Section 6.4. Taxeson Rental 13 ARTICLE VIL IMPROVEMENTS Section 7.1' Tenant's Improvements Section 7.2. Effectog Openinggpt Business Section 7.3. Mechanic's Liens 15 Section 7.4. Tenant's Leasehold Improvements and Trade Fixtures ARTICLE VIII OPERATIONS Section 8.1. Operations by Tenant 16 17 Section 8.2. Signs and Advertising 17 Section 8.3, Paintingond Displays by Tenant Section 8.4. Trash Removal Service Section 8.5. Permitted Use Disclaimer 18 Section 8.6. Hazardous Substances 19 ARTICLEIX REPAIRS AND ALTERATIONS 20 ZU Section 9.1. Repairs To Be Made By Landlord I:\Clients\Eastfield Mall\Leases\Rainbow Apparel 5-7-9 - #7.doc November 10, 2006 -i- Date Filed 12/20/2023 5:27 PM Superior Court - Norfolk Docket Number 2382CV00673 Section 9.2. Repairs To Be Made By Tenant see 21 Section 9.3. Damage(o Premises 22 Section 9.4, Alterations by Tenant 22 22 Section 9.5. Changesand Additions to Shopping Center Section 9.6. Roof and Walls 23 ARTICLE X COMMON AREAS 23 Section 10.1 Use of Common Areas Section 10.2 Management and Operationgg Common Areas B Section 10.3 Employee Parking Areas 24 Section 10.4, Tenant to Share Bxpenses 24 Section 10.5 25 Section 10.6. Mall Heating, Ventilating and Air. 4 Section 10.7. Renovation or Expansiongg Common Areas Conditioning Equipment Contribution Ratt