ORDERED that the motion by the defendant Omnipoint Facilities Network 2, LLC, for summary judgment on the issue of damages is granted to the extent indicated below; and it is further

ORDERED and that the motion by the defendant Omnipoint Facilities Network 2, LLC, is otherwise denied; and it is further

ORDERED the cross motion by the plaintiffs for leave to amend the complaint and for summary judgment on the issue of damages is denied.

The facts of this case are found in the prior orders of the court dated March 19, 2012, and will not be repeated here. Those orders dismissed the complaint insofar as it was asserted against all of the defendants except Omnipoint Facilities Network 2, LLC ("Omnipoint"). Although the issue of liability has not yet been determined, Omnipoint moves for summary judgment on the issue of damages. The plaintiffs cross move for the same relief and for leave to amend the complaint.

A motion for partial summary judgment under CPLR 3212 (e) may be entertained when distinct categories of damages are sought and it is summarily established that one of them cannot be sustained (see, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:30; see also, Koch v Consolidated Edison Co. of NY, 62 NY2d 548, 560). Such a motion is appropriate, for example, when it is clear that punitive damages cannot be sustained, but compensatory damages and the liability issues that would justify them present triable issues (Siegel, supra). If any part of the damages issue is logically severable and summary judgment casting that item out is sought, there is no reason why the motion cannot be entertained (Id.). The court is not aware, however, of any authority that would allow it to make a summary determination on the amount of damages to which the plaintiff is entitled before making a determination on the defendant's liability. In such a case, the court would be making an affirmative determination on the issue of damages, and not merely casting out a specific item of damages, before making a determination on the issue of liability. Accordingly, the plaintiffs' cross motion is denied insofar as it seeks summary judgment on the issue of damages.

The parties have identified the following five distinct categories of damages: [*2]

(1) $853,852.23 - the balance of the unpaid rent for the initial five-year term of the Omnipoint lease plus all five extensions thereof,

(2) $1,639.160.04 - unpaid rent from Nextel, Verizon, and two additional cellular telephone companies,

(3) $227,303.34 - the plaintiffs' expenses to improve the property to comply with the Omnipoint lease and the Village of Islandia's requirements for building a telecommunications tower thereon,

(4) $46,292.94 - rent paid by the plaintiffs to lease additional property to comply with the Village of Islandia's zoning requirements, and

(5) $39,592.50 - legal fees.

Damages under the Omnipoint Lease

The plaintiffs contend that they are entitled to recover from Omnipoint the entire balance of unpaid rent for the initial five-year term of the Omnipoint lease plus all five five-year extensions thereof. Omnipoint seeks to limit the plaintiffs damages to $63,000, which represents the balance of unpaid rent for the initial five-year term of the lease with no extensions.

A lease, like any other contract, is to be enforced in accordance with the expressed intention of the contracting parties (Goldman v Orange County Chapter, New York State Assoc. for Retarded Children, Inc., 121 AD2d 683, 684), which is generally discerned from the four corners of the document itself. Consequently, a written agreement that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms (MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640, 645).

The Omnipoint lease required Omnipoint to pay the plaintiffs rent during the initial five-year term of the lease and any extensions thereof. Additionally, the Omnipoint lease gave Omnipoint the right, but not the obligation, to extend the term for five successive five-year periods. The Omnipoint lease does not contain an acceleration clause. No action for future rent can be brought in the absence of such a clause (see, Beaumont Offset Corp. v Zito, 256 AD2d 372, 373). Thus, the plaintiffs can only recover from Omnipoint for installments due as of the filing date of their claims (Id.; 74 NY Jur 2d Landlord and Tenant § 119). The record reveals that Omnipoint stopped paying the plaintiffs rent in November 2006. This action was commenced on or about September 21, 2007. Accordingly, the plaintiffs may not recover from Omnipoint for rent due after September 21, 2007.

The plaintiffs contend that the Omnipoint lease was not a simple lease, but had elements of pure contract; and, inasmuch as the Omnipoint lease was repudiated before the [*3]telecommunications tower was built, it is appropriate for the plaintiffs to seek contractual damages for the loss of the benefit of their bargain. In support thereof, the plaintiff relies on Latham Land I, LLC v TGI Friday's Inc. (96 AD3d 1327). In that case, the defendant, as lessee, agreed to build and operate a restaurant on the plaintiff's real property. The contract contemplated an initial lease term of 10 years with five-year renewal options at the end of the lease, after which the plaintiff would take ownership of the building. Defendant, however, never commenced construction of the building and notified the plaintiff that it was terminating the contract before the lease term began. The plaintiff sought damages for the loss of value of the leasehold interest promised by the parties' agreement. Specifically, the plaintiff produced evidence that the value of its property following the defendant's breach was lower than it would have been had the defendant honored the parties' agreement and argued that the difference in those values was the proper measure of damages. The Appellate Division, Third Department, agreeing with the plaintiff, held that it was the appropriate measure of damages.

The Latham case is distinguishable from this case in a few respects. First, the contract in Latham was repudiated before the lease term began. The Omnipoint lease was terminated in the middle of the initial five-year term. Second, the plaintiff in Latham expressly stated that it was not seeking actual rent due as a result of the defendant's failure to create the leasehold estate promised by the contract. The plaintiffs in this case are clearly seeking to recover rent that they purportedly would have received from Omnipoint, Nextel, Verizon, and two other cellular telephone companies. Third, the damages that the plaintiff in Latham sought to recover was the difference between the value of the property with and without the lease. Thus, contrary to the plaintiffs' contentions, Latham does not support their argument that the value of lost rent is the appropriate measure of contractual damages. Accordingly, the court finds that Latham is inapplicable to the facts of this case.

In view of the foregoing, Omnipoint's motion for summary judgment is granted to the extent of dismissing the plaintiffs' claim for damages under the Omnipoint lease in the amount of $853,852.23.

Damages under the Nextel Lease

The plaintiffs entered into a lease with Nextel for an initial term of five years, commencing on August 1, 2006, plus three five-years extensions. Nextel paid the plaintiffs rent through the end of the initial five-year term, i.e., through July 31, 2011, and did not exercise its right to extend the term for an additional five years. The plaintiff seeks to recover from Omnipoint the balance of the rent under the Nextel lease for the three five-year extensions.^[FN1]

In determining the prior motion for summary judgment by Nextel, this court found that Nextel did not breach its lease with the plaintiffs. The court also found that, although Nextel [*4]had the right to extend the lease beyond the initial five-year term, it was not obligated to do so. Thus, the court found that Nextel was not liable to the plaintiffs and dismissed the complaint insofar as it was asserted against Nextel. In view of that determination, the court finds that Omnipoint cannot be held liable to the plaintiffs for Nextel's failure to exercise its right to extend the lease beyond the initial five-year term. Moreover, the Nextel lease, like the Omnipoint lease, does not contain an acceleration clause. As previously discussed, in the absence of such a clause, the plaintiffs may not recover for rent due after September 21, 2007. The argument by the plaintiffs that they are not seeking to recover rent, but contractual damages, is rejected for the reasons stated above. Accordingly, Omnipoint's motion for summary judgment is granted to the extent of dismissing the plaintiffs' claim for damages under the Nextel lease.

Unpaid Rent from Verizon and Two Additional Cellular Telephone Companies

The plaintiffs contend that, but for Omnipoint's breach, they would have leased space on the cellular telephone tower that was to be built on their property to Verizon and two other unidentified cellular telephone companies. The plaintiffs seek to recover from Omnipoint the rental payments that they did not received from Verizon and the others for a period of 25 years. The plaintiffs' damage calculation is based on the Nextel lease.

It is undisputed that the plaintiffs did not enter into a lease with Verizon or any cellular telephone companies other than Omnipoint and Nextel. The court finds that, in the absence of actual leases with Verizon and others, this category of damages is too speculative for the plaintiffs to recover. The plaintiffs' calculations depend on a host of speculative assumptions and few known factors (see, Ashland Mgt. v Janien, 82 NY2d 395, 405, citing Kenford Co. v County of Erie, 67 NY2d 257, 262). Moreover, the Omnipoint lease provides that, in the event of a default or material breach, each party shall have the right, but not the obligation, to terminate the lease on written notice. The Omnipoint lease does not provide for any other remedy in the event of a default or material breach thereof, and the plaintiffs' conclusory assertions fail to demonstrate that the parties contemplated liability for lost profits over a 25-year period when they executed the Omnipoint lease (Kenford, supra at 261-262). Accordingly, Omnipoint's motion for summary judgment is granted to the extent of dismissing the plaintiffs' claim for damages for unpaid rent from Verizon and two additional cellular telephone companies.

Expenses to Improve the Property and to Lease Additional Property

Contrary to Omnipoint's contentions, the Omnipoint lease clearly allows the plaintiffs to recover the expenses they incurred in obtaining the governmental approvals required for Omnipoint's use of the property. The Omnipoint lease provides, in pertinent part, as follows:

[D]uring the term of this Lease, [plaintiffs agree] to cooperate with [Omnipoint] in obtaining, at [Omnipoint's] expense, all licenses and permits or authorizations required for [Omnipoint's] use of the Premises...from all applicable government and/or regulatory [*5]entities (including, without limitation, zoning and land use authorities, and the Federal Communication Commission ("FCC") ("Governmental Approvals"), ...and [plaintiffs agree] to cooperate with and to allow [Omnipoint], at [Omnipoint's] sole expense, to obtain title report, zoning approvals and variances, land use permits....

A lease, like any other contract, is to be enforced in accordance with the expressed intention of the contracting parties (Goldman v Orange County Chapter, New York State Assoc. for Retarded Children, Inc., 121 AD2d 683, 684), which is generally discerned from the four corners of the document itself. Consequently, a written agreement that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms (MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640, 645).

The court finds that the foregoing provision of the Omnipoint lease is unambiguous and that Omnipoint's interpretation thereof is contrary to its plain meaning. Moreover, the plaintiffs did not waive their right to be reimbursed for expenses incurred in obtaining governmental approvals by failing to exercise that right sooner. The Omnipoint lease clearly provides, "No waiver shall be implied by delay or any other act or omission of either party." Accordingly, Omnipoint's motion for summary judgment is denied insofar as it seeks to dismiss the plaintiffs' claims to recover expenses incurred to obtain governmental approvals.

Legal Fees

Omnipoint does not challenge the plaintiffs' claim to recover legal expenses.

Cross Motion to Amend the Complaint

The plaintiffs seek to amend the complaint to plead explicitly their claims for damages under the Nextel lease and for unpaid rent from Verizon and two additional cellular telephone companies. The court has already dismissed those claims. Accordingly, the cross motion is denied insofar as it seeks to amend the complaint.

DATED:December 3, 2013

J. S.C.