Louis A. Frapporti

The plaintiff landlord brought a motion for summary judgment against a commercial tenant and its guarantor for unpaid rent and related damages under a lease agreement.

The defendants resisted the motion and sought an order compelling the plaintiff to produce an affidavit of documents, while also advancing a counterclaim alleging that the landlord interfered with a proposed assignment of the lease to new tenants.

The court held that the evidentiary record, including affidavits, cross-examinations, and correspondence, provided a sufficient basis to determine the issues without a trial.

The court rejected the counterclaim, finding the allegation that the landlord’s lawyer discouraged prospective purchasers by misstating arrears lacked evidentiary support.

Summary judgment was granted for the landlord, including damages for arrears and mitigation-adjusted future rent.

Following the dismissal of a defendant’s motion seeking an interim stay of an action and a stay of a production order pending a summary judgment motion, the successful plaintiff sought costs payable immediately and on a substantial indemnity basis.

The defendant argued the issue of costs should be reserved to the judge hearing the summary judgment motion, or alternatively fixed on a partial indemnity basis.

The court reaffirmed that the successful party on a motion generally has a reasonable expectation of costs and that substantial indemnity costs are reserved for exceptional circumstances involving egregious or unreasonable conduct.

Finding no such conduct and rejecting the request to defer the issue, the court ordered costs on a partial indemnity basis.

Costs were fixed at $10,000 inclusive of disbursements and tax, payable within 30 days.