        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

351
CA 11-01884
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


EKLECCO NEWCO, LLC, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

Q OF PALISADES, LLC, DOING BUSINESS AS QDOBA
MEXICAN GRILL, AND ROBERT A. LYON,
DEFENDANTS-RESPONDENTS.
(APPEAL NO. 1.)


YOUNG/SOMMER LLC, ALBANY (J. MICHAEL NAUGHTON OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

HISCOCK & BARCLAY, LLP, SYRACUSE (W. COOK ALCIATI OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Onondaga County (John
C. Cherundolo, A.J.), entered July 21, 2011 in a breach of contract
action. The order denied plaintiff’s motion for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting those parts of plaintiff’s
motion seeking summary judgment on the second, sixth, and ninth causes
of action and summary judgment dismissing the counterclaims and as
modified the order is affirmed without costs, and

     It is further ORDERED that judgment be entered in favor of
plaintiff and against defendant Q of Palisades, LLC, doing business as
Qdoba Mexican Grill, in the amount of $172,305.12.

     Memorandum: Plaintiff (hereafter, landlord) commenced this
action seeking, inter alia, to recover unpaid rent pursuant to the
terms of its commercial property lease with defendant Q of Palisades,
LLC, doing business as Qdoba Mexican Grill (hereafter, tenant). The
tenant’s principal, defendant Robert A. Lyon, executed a guaranty of
the lease. In appeal No. 1, the landlord appeals from an order
denying its motion for summary judgment on the complaint and
dismissing the counterclaims and to strike defendants’ affirmative
defenses. In appeal No. 2, the landlord appeals from an order denying
its motion for “leave to renew or reargue” those parts of its prior
motion for summary judgment on the first and second causes of action.

     We note at the outset that, as limited by its brief, the landlord
has abandoned any issues with respect to those parts of its motion
seeking summary judgment on the first, third, fifth, seventh, and
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                                                         CA 11-01884

eighth causes of action and to strike the affirmative defenses (see
Ciesinski v Town of Aurora, 202 AD2d 984, 984). With respect to the
order in appeal No. 1, we agree with the landlord that Supreme Court
erred in denying that part of its motion seeking summary judgment on
the second cause of action, for past due rent against the tenant. The
landlord established that the tenant was obligated to pay rent
pursuant to the terms of the lease and owed $172,305.12 in past due
rent as of May 31, 2011, the time of its motion for summary judgment,
and the tenant failed to raise a triable issue of fact (see Crystal
Run Newco, LLC v United Pet Supply, Inc., 70 AD3d 1418, 1419). We
therefore modify the order in appeal No. 1 accordingly, and we direct
that judgment be entered in favor of the landlord and against the
tenant in the amount of $172,305.12.

     We further agree with the landlord that the court erred in
determining that triable issues of fact existed with respect to the
counterclaims and in denying those parts of its motion seeking summary
judgment dismissing the counterclaims, and we therefore further modify
the order in appeal No. 1 accordingly. In the first counterclaim, for
fraud in the inducement, defendants alleged that the landlord made
misrepresentations concerning the number of annual visitors at the
property and the sales volume of other tenants. The required elements
of a fraud cause of action are representation of material fact,
falsity, scienter, reliance, and injury (see Small v Lorillard Tobacco
Co., 94 NY2d 43, 57; Lama Holding Co. v Smith Barney, 88 NY2d 413,
421; Brenner v American Cyanamid Co., 288 AD2d 869, 870). Here, the
landlord established as a matter of law that defendants were
prohibited from relying upon the representations of the landlord based
on section 23.16 of the lease (see Valassis Communications v
Weimer, 304 AD2d 448, 448, appeal dismissed 2 NY3d 794). That section
provided, in relevant part, that “Tenant acknowledges and agrees that
neither Landlord nor any representative of Landlord nor any broker has
made any representation to or agreement with Tenant relating to the
Premises, this Lease or the Shopping Center which is not contained in
the express terms of this Lease. Tenant acknowledges and agrees that
Tenant’s execution and delivery of this Lease is based upon Tenant’s
independent investigation and analysis of the business potential and
expenses represented by this Lease, and Tenant hereby expressly waives
any and all claims or defenses by Tenant against the enforcement of
this Lease which are based upon allegations of representations,
projections, estimates, understandings or agreements by Landlord or
Landlord’s representative that are not contained in the express terms
of this Lease.” Contrary to defendants’ contention, that section was
not a general merger clause, but rather it was a specific disclaimer
that defeats defendants’ allegation that they executed the lease in
reliance upon the landlord’s oral representations (see Danann Realty
Corp. v Harris, 5 NY2d 317, 320-321).

     Defendants’ second counterclaim sought an accounting of the
“additional rent” that the tenant paid as part of the lease agreement.
We agree with the landlord that the counterclaim must be dismissed
based on the doctrine of account stated. “ ‘An account stated is an
agreement between the parties to an account based upon prior
transactions between them with respect to the correctness of the
                                 -3-                           351
                                                         CA 11-01884

separate items composing the account and the balance due, if any, in
favor of one party or the other’ ” (Shea & Gould v Burr, 194 AD2d 369,
370). In support of its motion, the landlord submitted the yearly
statements it provided to the tenant that indicated the monthly
charges, including charges for additional rent. Defendants never
raised any objection to those charges and, pursuant to the doctrine of
account stated, they cannot object to them now (see generally Francis
W. King Petroleum Prods. v Geiger, 231 AD2d 906; Shea & Gould, 194
AD2d at 371).

     Finally, we agree with the landlord that the court erred in
denying those parts of its motion for summary judgment on the sixth
and ninth causes of action, seeking attorneys’ fees against each
defendant. Both the lease and the guaranty contain a provision
granting the landlord the right to recover attorneys’ fees upon a
default in paying rent, and those provisions are unambiguous (see
generally Hooper Assoc. v AGS Computers, 74 NY2d 487, 491-492). We
therefore further modify the order in appeal No. 1 accordingly.

     With respect to the order in appeal No. 2, we dismiss the appeal
from that order insofar as it denied the landlord’s motion for leave
to reargue certain parts of its prior motion (see Empire Ins. Co. v
Food City, 167 AD2d 983, 984). To the extent that the order denied
the landlord’s motion for leave to renew those parts of its prior
motion, we affirm. “A motion for leave to renew . . . shall be based
upon new facts not offered on the prior motion that would change the
prior determination” (CPLR 2221 [e] [2]). The court properly
determined that, although the landlord submitted new evidence, the
facts contained therein would not have changed the court’s prior
determination (see Garcea v Battista, 53 AD3d 1068, 1070).




Entered:   March 16, 2012                       Frances E. Cafarell
                                                Clerk of the Court
