Upon the foregoing cited papers, the petition must be denied, as petitioner's reliance on alleged oral assurances that are in direct conflict with a written agreement is not reasonable.

Petitioner Airport Mart, Inc. (Airport Mart) commenced this special proceeding, by order to show cause for a judgment, pursuant to Article 78 of the CPLR, annulling and vacating the determination of respondent Westchester County, New York (County) to terminate the License Agreement between the parties and directing the County to renew the License Agreement, or in [*2]the alternative, to direct the County to vacate its acceptance of any other proposal for the operation of the subject premises and to accept the proposal of petitioner.

The facts underlying this Article 78 proceeding are as follows.

By written license agreement dated April 20, 2006 (2006 Agreement), Airport Mart and the County agreed that Airport Mart would lease, occupy and use approximately 134 square feet of space on the first floor of the main terminal building at the Westchester County Airport (Leased Premises) for the purpose of operating a news, gift and sundries concession (see 2006 Agreement, schedule A). The term of the 2006 Agreement commenced on February 1, 2006, and terminated on January 31, 2011. The parties agreed that, "at the sole option of the County," the term could be renewed for an additional period of five years, that being from February 1, 2011 through January 31, 2016 (2006 Agreement, Article 2, §§ 2.1, 2.2). The 2006 Agreement also contains a standard merger clause declaring that:

The parties amended the 2006 Agreement before the end of the term. By written amendment dated October 1, 2008 (2008 Amendment), Airport Mart and the County agreed that, in exchange for certain consideration, Airport Mart would have use of additional square footage, increasing the Leased Premises to 254 square feet, effective that date. Section 2 of the 2008 Amendment provided for an immediate rent increase starting on October 1, 2008, and Section 3 provided that: "[e]xcept as otherwise provided herein, all other terms and conditions of the [2006] Agreement shall remain in full force and effect."

Prior to the end of the 2006 Agreement term, Airport Mart and the County executed a new agreement with respect to the subject premises. By license agreement dated December 30, 2009 (License Agreement), the parties terminated the 2006 Agreement, and, among other things, agreed to a new lease term commencing on January 1, 2010, and terminating on December 31, 2014 (License Agreement, Article 3, § 3.1). The License Agreement also specifically provides that: "[a]t the sole option of the County and subject to all necessary legal approvals, the terms may be renewed for an additional period of five years from January 1, 2015 through December 31, 2019" (id. at § 3.2). The License Agreement also contains a merger clause identical to the one set forth in the 2006 Agreement (see id. at Article 22, § 22.1).

By written contract between Dunkin' Donuts Franchising LLC and Airport Mart dated June 30, 2010, Airport Mart became a Dunkin' Donuts franchisee (Franchise Agreement) with the intended restaurant location being Westchester County Airport (see Franchise Agreement, petitioner's exhibit D).

Soon thereafter, by written amendment dated November 4, 2010 (First Amendment), Airport Mart and the County agreed, in exchange for certain consideration, to add 150 square feet to the amount of space contemplated under the License Agreement for Airport Mart's use as a concession. Airport Mart's total square footage increased from 254 square feet to 404 square feet, effective January 1, 2011, and continuing through December 31, 2014 (see First [*3]Amendment §§ 1-3, petitioner's exhibit C). The First Amendment also provides that "[e]xcept as otherwise provided herein, all other terms and conditions of the [License] Agreement shall remain in full force and effect" (id. at § 4).

Based on petitioner's allegations, on several nonspecific dates following execution of the First Amendment, Airport Mart spoke with several unidentified County officials and/or unidentified airport management personnel about the possibility of extending the term of the License Agreement. Airport Mart claims to have been surprised when, in mid-December 2011, it received a letter from the County, dated December 15, 2011, advising it that:

Airport Mart, by its president, Sammy Eljamal, responded by letter directed to the Commissioner of Public Works and Transportation for the County of Westchester dated December 18, 2011. In the letter, Airport Mart took exception to the position taken by the County, namely that the concession space would be placed out for a request for proposals, rather than continuing the lease arrangement. Airport Mart found this especially objectionable because the County officials and airport management personnel had allegedly provided assurances that the concession arrangement would continue. Airport Mart also claims that the County was fully aware that Airport Mart had invested approximately one half million dollars into enhancing the Leased Premises, and that it had entered into a 10 year Franchise Agreement with Dunkin' Donuts (ending in 2021) with respect to its concession at the Westchester County Airport, as well as entering into an additional franchise arrangement with franchisor, Subway (id. at exhibit G). On December 22, 2011, Airport Mart sent a follow-up letter to the Commissioner of Public Works and Transportation. In it, Airport Mart restated its position, and pointed out, among other things, that Eljamal's review of the FAA guidelines did not uncover the type of regulations suggested by the County in its December 15, 2011 letter, and that the County's failure to renew the License Agreement would cause Airport Mart to breach its Franchise Agreement (id. at exhibit H).

Despite the fact that this issue had not been resolved, in 2012, Airport Mart again increased the total square footage it leased from the County for use for its concession business. Specifically, by written Second Amendment dated July 9, 2012, the parties agreed that, in exchange for certain consideration, the License Agreement was "amended to increase the [*4]Licensed Premises by approximately 300 square feet to a new total of approximately 704 square feet . . . to allow a full service Dunkin Donuts franchise" (Second Amendment § 1, petitioner's exhibit C). The Second Agreement also states, among other things, that the License Agreement terminates on "December 31, 2014, subject to renewal of an additional five years at the sole discretion of the County" (id.), and that "[e]xcept as otherwise provided herein, all other terms and conditions of the [License] Agreement, as amended, shall remain in full force and effect" (id. at § 5).

It is undisputed that Airport Mart renovated the Leased Premises in order to accommodate the addition of Dunkin' Donuts products to its concession, and that the County was aware of the extent of the work being done to enhance the concession space.

As promised in its December 15, 2011 letter, the County published a Request for Proposals (RFP) on or about May 27, 2014, soliciting business proposals for a newsstand and coffee shop concession in the pre-TSA security section of the Westchester County Airport (see petitioner's exhibit I). All proposals had to be submitted by August 1, 2014, and according to the County, it received a total of six for consideration, including that of Airport Mart. A committee reviewed the applicant vendors' written proposals, their responses during interviews and any supplemental materials submitted and received by the County. It is undisputed that Airport Mart's License Agreement expired on December 31, 2014, and that it was, nevertheless, permitted to remain in the Leased Premises as a holdover tenant while the RFP process continued.

Prior to completion of the RFP process, Airport Mart was notified, by separate letters dated March 13, 2015, that it had been certified by the Port Authority of New York and New Jersey (Port Authority) as an Airport Concession Disadvantaged Business Enterprise (ACDBE) and as a member of Port Authority's Minority and Women-owned Business Enterprise Program (MWBE) (id. at exhibit K).

In a lawyer's letter dated April 3, 2015, and directed to the Assistant Airport Manager of the Westchester County Airport, Airport Mart: (1) protested the likelihood that a lease agreement would be offered to another vendor, especially one which was neither experienced nor certified as ACDBE or MWBE; (2) identified the financial losses it would sustain if it were not awarded a new lease; (3) requested an alternative location post TSA-security; and (4) threatened "official complaints to federal agencies and litigation over discrimination, misrepresentation, fraud or improper contracting practices" (id. at exhibit L). Airport Mart sent a followup inquiry by letter dated April 28, 2015 (id. at exhibit M).

The Commission of Public Works and Transportation notified the County's Board of Acquisition and Contract, by letter dated June 15, 2015, that it had the authority to enter into a lease agreement with an entity named Coco News of Westchester County Airport, Inc. (Coco News) to operate a newsstand and coffee shop concession at the Westchester County Airport for the period of July 1, 2015 through June 30, 2020. The letter also advised the Board of Acquisition and Contract that an entity named 121 Group Holdings was selected as the second choice, and that Airport Mart was the third choice to operate the newsstand and coffee shop concession (County aff, exhibit G). On June 15, 2015, the Board of Acquisition and Contract approved a resolution authorizing the County to enter into a lease agreement with Coco News (id.).

By letter dated June 24, 2015, the County, by its Commissioner of Public Works and Transportation, notified Airport Mart that it elected not to exercise its option to renew the License Agreement. The letter also states, in relevant part, that "[n]otice is hereby served for Airport Mart to vacate the Licensed Premises no later than 5:00 p.m. on July 15, 2015," and, quoting from section 19.4 of the License Agreement, that "[n]o holding over by Licensee after the termination of this Agreement shall operate to extend or renew this Agreement for any further term whatsoever. Continued occupancy thereof by Licensee shall constitute trespassing by Licensee" (id. at exhibit H).

By order to show cause dated July 7, 2015, Airport Mart commenced the instant proceeding challenging the County's decision not to renew the License Agreement. The petition contains three causes of action sounding in misrepresentation, negligent misrepresentation, and unjust enrichment. It also contains Airport Mart's arguments that: (1) the County incorrectly interpreted the FAA regulations as requiring it to place the Leased Premises up for RFP bid; (2) the County should be estopped from evicting it from the Leased Premises due to assurances made by County officials; and (3) the County's determination not to renew the License Agreement was arbitrary, capricious, an abuse of discretion and an error of law.

Together with its petition grieving the County's actions, Airport Mart sought emergency injunctive relief. Specifically, Airport Mart sought a temporary restraining order pending final determination of the merits of its petition. This Court granted the order to show cause on July 7, 2015, to the extent of temporarily enjoining and restraining the County, its agents, servants and/or employees or anyone acting on its behalf or at its behest from interfering with Airport Mart's use and quite enjoyment of the Leased Premises pending final determination of this proceeding, and required service on the County by July 8, 2015. On July 14, 2015, the County submitted opposition papers in which it asserts that Airport Mart lacks capacity to challenge its decision to award the RFP to Coco News, that the instant challenge to that decision is time barred, and that the petition fails to state causes of action for estoppel, misrepresentation and unjust enrichment.

Following a court appearance on July 16, 2015, and various attempts by this Court to help the parties to find a workable solution and agreement on this matter, this Court issued an order, dated July 17, 2015, lifting and vacating the injunction.

By letter dated July 21, 2015, sent via facsimile and overnight courier, the County advised Airport Mart to vacate the Leased Premises by 5:00 p.m., Thursday, July 23, 2015 (see reply aff, exhibit D). On July 22, 2015, Airport Mart filed a Request for Appellate Division Intervention and Notice of Appeal, and moved by order to show cause to the Appellate Division, Second Department for a stay of enforcement of the July 17, 2015 order (id. at exhibits E, F). The Honorable Betsy Barros signed the order to show cause enjoining and restraining the County from enforcing the July 15, 2015 order "until such time as this motion may be heard or decided" (id. at exhibit G).

Airport Mart's Article 78 petition is resolved as follows.

The County's affirmative defenses, more properly raised in a motion to dismiss pursuant to CPLR 3211 (a) (1), (3), (5) and (7), are meritorious to the following extent.

As to whether Airport Mart lacks the requisite capacity, it is well settled that, to have [*5]standing to challenge the County's decision to award the RFP to Coco News, Airport Mart must adequately plead injury in fact, that being the presence of an actual legal stake in the matter being adjudicated (see Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772 [1991]; Matter of Dairylea Coop. v Walkely, 38 NY2d 6, 9-10 [1975]). Airport Mart has failed to do so. Much like the plaintiff bidder in Huntspoint Term. Produce Coop. Assn., Inc. v New York City Economic Dev. Corp. (36 AD3d 234 [1st Dept 2006]), Airport Mart, which objects strongly to the selection of Coco News in particular, "has not sufficiently alleged injury in fact. Mere competitive injury does not suffice as injury in fact. A competitive injury, in and of itself, does not confer standing to challenge an administrative determination" (id. at 247 [internal quotation marks and citations omitted]).

In response to Airport Mart's argument that the County should not have awarded the RFP to a noncertified ACDBE or MWBE vendor, such as Coco News, the County asserts that while its goal is to "ensure that ACDBEs have an equal opportunity to receive and participate in concession opportunities"^[FN1] (County aff, exhibit F - RFP Notice to Proposers § 1.06), not every concession opportunity must go to either an ACDBE or MWBE certified vendor. Acknowledging its obligations under 49 CFR part 23, the County contends the question of whether it has met its goal for ACDBE participation is of no concern to Airport Mart, or to any other vendor, and does not provide them with standing to challenge its business decisions. Additionally, while ACDBE participation is a factor, the County has the authority to select an appropriate concession vendor and to determine that it was not in the County's business interest to award the RFP to Airport Mart simply because it was certified as both an ACDBE vendor and an MWBE vendor in or about February 2015.

To the extent the County seeks dismissal of the petition on the ground that the statute of limitations for a special proceeding brought pursuant to CPLR Article 78 expired four months after it issued the December 15, 2011 letter, the argument is unavailing. Contrary to the County's assertions, the December 15, 2011 letter merely informed Airport Mart that it would be complying with FAA regulations governing concession agreements in airports, and that upon expiration of the current five year agreement, the Leased Premises would be placed out for RFP bids. The letter did not state that the County had decided not to exercise the renewal option, nor did it bar Airport Mart from submitting a bid. Based on the documentary evidence submitted for court review, Airport Mart was not formally informed of the County's final decision not to renew the License Agreement until June 24, 2015. Inasmuch as Airport Mart commenced the instant proceeding approximately 15 days after receiving the County's final determination, easily within the four month time period for commencing an Article 78 proceeding against the County (CPLR 217 [1]), there is no merit to the County's statute of limitations defense.

Next, the County contends that Airport Mart's allegations of misrepresentation, based on purported assurances by County officials and airport management personnel that it would continue the concession arrangement, thereby inducing it to invest exorbitant sums of money, are inadequately pled. Under New York law, a claim for misrepresentation, which is an essential [*6]element of a cause of action sounding in fraud, is subject to a "more stringent standard of pleading" (CPLR 3016). To this end, the petition, which consists of little more than boilerplate allegations regarding oral promises by unidentified officials and personnel to extend Airport Mart's tenancy, lack the required specificity. Additionally, the merger clause set forth in Article 22, section 22.1 of the License Agreement bars the introduction of extrinsic evidence to vary or contradict the terms of the written and duly executed License Agreement and First and Second amendments (see Citibank v Paplinger, 66 NY2d 90, 94-95 [1985]; Judnick Realty Corp. v 32 W. 32nd St. Corp., 61 NY2d 819, 822 [1984]).

The claim for negligent misrepresentation also fails for lack of specificity. "Liability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified" (Kimmell v Schaefer, 89 NY2d 257, 263 [1996]). As relevant here, the pleading contains no allegations that a special relationship exists between Airport Mart and the County. The uncontradicted allegations suggest nothing more than that Airport Mart engaged in an arms length business transaction with the County with respect to the Leased Premises. Accordingly, the allegations do not support a cause of action sounding in either misrepresentation or negligent misrepresentation.

Airport Mart's cause of action for unjust enrichment, based on enhancements it made to the Leased Premises, must also be dismissed. "Where the parties executed a valid and enforceable written contract governing a particular subject matter, recovery on a theory of unjust enrichment for events arising out of that subject matter is ordinarily precluded" (IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009]). It is only in instances where the contract at issue "does not cover the dispute in issue [that a party may] proceed on a quasi-contract theory of unjust enrichment" (Ashwood Capital, Inc. v OTG Mgt., Inc., 99 AD3d at 10). The License Agreement, with amendments, constitutes a valid and enforceable contract, and as such, it is a bar to Airport Mart's cause of action sounding in unjust enrichment.

Airport Mart bases its estoppel cause of action on assurances purportedly given to it by County officials and airport management personnel to the effect that the License Agreement would be renewed, and/or that its bid would be accepted if it made certain renovations and opened a full service Dunkin' Donuts. Inasmuch as Airport Mart expended approximately $500,000.00 to enhancing the Leased Premises in reliance on these assurances, the County must be estopped from evicting it.

The Court of Appeals made it clear in Matter of New York State Med. Transporters Assn. v Perales (77 NY2d 126, 130 [1990]) that the application of the doctrine of estoppel against a governmental agency or municipality, such as the County, is "foreclosed in all but the rarest cases." Furthermore, even if misstatements about the leased space were made by County officials or airport management personnel, "erroneous advice given by an employee of a governmental agency is not considered to rise to the level of an unusual circumstance," such as is required to employ equitable estoppel to prevent the County from enforcing the terms of the License Agreement (Matter of Smith v New York State & Local Retirement Sys., 199 AD2d 763, 764 [3d Dept 1993]; Matter of O'Brien v Board of Educ. of City School Dist. of City of NY, 71 AD2d 605, 606 [2d Dept 1979]).

What is before the Court is, essentially, a contract dispute, and contrary to the arguments asserted in support of both the emergency application and the petition itself, Airport Mart is not entitled to a judgment directing the County to exercise the renewal option, or to a judgment directing the County to vacate its acceptance of Coco News's proposal in favor of Airport Mart.According to the License Agreement, the option to renew "for an additional period of five years from January 1, 2015 through December 31, 2019" (License Agreement, Article 3, § 3.2) was contingent solely on the discretion of the County, which elected not to renew the License Agreement. This language was in effect at the time Airport Mart obligated itself to Dunkin' Donuts under the Franchise Agreement, as it had not been deleted nor otherwise modified prior to June 30, 2010. The language rendering renewal subject exclusively to the discretion of the County was echoed in the WHEREAS clause contained in the First Amendment, and the WITNESSETH clause contained in the Second Amendment, which, as indicated above, were acknowledged and accepted by Airport Mart when each was executed by Eljamal on behalf of Airport Mart on November 4, 2010, and July 9, 2012, respectively.

Airport Mart's assertions that it was reasonable for it to rely on oral assurances that the License Agreement would be renewed are negated by the documentary evidence. The December 15, 2011 letter establishes that when, in or about 2011, Airport Mart sought to increase, once again, the square footage of the Leased Premises, the County advised it, in writing, of the limitations affecting its use of the Leased Premises. As set forth above, the County made it abundantly clear that it would be adhering to FAA regulations governing concession agreements in airports, that upon expiration of the current five year agreement, the Leased Premises would be placed out for RFP bids from other businesses, and that Airport Mart should take this into consideration before moving forward with its plans to add additional concession space and executing the Second Amendment (see petitioner's exhibit F). Although Airport Mart expressed its disapproval and concerns in its letters of December 18 and 22, 2011, to the Commissioner of Public Works and Transportation, Airport Mart, for reasons left unexplained, nevertheless, elected to enter into the Second Amendment and to expend significant sums of money enhancing the Leased Premises without obtaining a written extension of the term of the License Agreement.

It is well settled that "[t]he fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent [and] [t]he best evidence of what the parties to a written agreement intend is what they say in their writing" (Henrich v Phazar Anetnna Corp, 33 AD3d 864, 866-867 [2d Dept 2006] [internal quotation marks and citations omitted]). "Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield v Philles Records, 98 NY2d 562, 569 [2002]), and neither extrinsic nor parol evidence of the parties' intent may be considered unless the agreement at issue is found to be ambiguous (see Henrich v Phazar Anetnna Corp, 33 AD3d at 867; see also R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29, 33 [2002]). Furthermore, a court "will not imply a term where the circumstances surrounding the formation of the contract indicate that the parties, when the contract was made, must have foreseen the contingency at issue and the agreement can be enforced according to its terms" (Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001]). New York courts apply the well-established rules of contract interpretation "with even greater force in commercial contracts negotiated at arm's length by sophisticated, counseled business people" (Ashwood Capital, Inc. v OTG Mgt., [*7]Inc., 99 AD3d 1, 7 [1st Dept 2012]).

Furthermore, although not addressed by either of the parties, the statute of frauds requires that leases with terms longer than one year be in writing (see General Obligations Law §§ 5-701, 5-703). This, together with the merger clause, render Airport Mart's position untenable.

Here, the License Agreement and First and Second Amendments are clear and unambiguous as to the end of the term, the fact that the County has sole discretion as to whether the License Agreement would be renewed at the end of the current term, and as to the requirement that all modifications to its terms must be in a signed writing. A review of the parties's submissions fails to reveal "an instrument in writing signed by a duly authorized representative of each of the parties" (License Agreement, Article 22, § 22.1) that modifies or otherwise varies any of the terms set forth in the License Agreement, the First Amendment and/or the Second Amendment with respect to the end of the term (December 31, 2014) or with respect to renewal of the License Agreement being subject only to the discretion of the County. The language of the merger clause "as a matter of law bars any claim based on an alleged intent that the parties failed to express in writing" (Ashwood Capital, Inc. v OTG Mgt., Inc., 99 AD3d at 9). Airport Mart also fails to show how its decision to expand and enhance the Leased Premises, on more than one occasion, under circumstances in which it had no guaranteed renewal of the License Agreement, was anything other than a business risk it elected to undertake. Airport Mart's actions in this respect undercut its claims of damages and irreparable injury.

In a proceeding pursuant to Article 78 of the CPLR to review the determination of a municipality such as the County, "it is well settled that a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion" (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 232 [1974] [internal quotation marks and citation omitted]). As noted above, Airport Mart lacks standing to challenge the County's determination. Even if this Court had found that it did have standing, Airport Mart has also failed to demonstrate that, in electing not to renew the License Agreement, the County acted in an arbitrary or capricious manner, that the determination was affected by an error of law, or that the County abused the discretion reserved to it by the very terms of the License Agreement.

Accordingly, it is

ADJUDGED that the petition is denied and the proceeding is dismissed.

August 4, 2015

_______________________________

HON. DAVID F. EVERETT, A.J.S.C.