| Foot Locker Stores, Inc. v Pyramid Mgt. Group, Inc. |
| 2007 NY Slip Op 09271 [45 AD3d 1447] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| Foot Locker Stores, Inc., et al., Appellants, v Pyramid ManagementGroup, Inc., et al., Respondents. |
—[*1] Dadd and Nelson PLLC, Attica (Eric T. Dadd of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Onondaga County (James C. Tormey, J., forJohn V. Centra, J.), entered October 31, 2006. The order, insofar as appealed from, deniedplaintiffs' motion for partial summary judgment and granted in part defendants' motion forsummary judgment dismissing plaintiffs' claims.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslymodified on the law by granting plaintiffs' motion and dismissing the first, second and fifthcounterclaims and as modified the order is affirmed without costs.
Memorandum: Plaintiffs, tenants in retail shopping centers owned and operated bydefendants, commenced this action to recover sums allegedly overcharged by defendantspursuant to the parties' leases. Supreme Court properly granted that part of defendants' motionseeking partial summary judgment dismissing the claims relating to electricity overcharges basedsolely on the quantity of electricity used by plaintiffs prior to February 1, 2002. Defendantsestablished that, prior to that date, plaintiffs did not comply with the checkmeter procedure setforth in the leases, which the parties agreed would be the "sole and exclusive remedy between[them] to resolve any dispute concerning the amount of electrical usage within the Premises," andplaintiffs failed to raise a triable issue of fact in opposition (see generally Zuckerman v Cityof New York, 49 NY2d 557, 562 [1980]).
The court erred, however, in denying plaintiffs' motion seeking partial summary judgmentdismissing defendants' first, second and fifth counterclaims alleging, respectively, fraud,fraudulent inducement with respect to the parties' agreement to terminate certain leases, andbreach of the operating covenants of those terminated leases. We therefore modify the orderaccordingly. Plaintiffs' alleged misrepresentations were "not statements of existing fact butexpressions of future expectations which cannot sustain" the two counterclaims based upon fraud(Fitch v TMF Sys., 272 AD2d 775, 777 [2000]). Further, the failure of plaintiffs todisclose, during the [*2]lease termination negotiations, that theywere conducting an audit of all of their leases does not support those counterclaims becauseplaintiffs had no duty to disclose the audit to defendants (see generally Nasaba Corp. vHarfred Realty Corp., 287 NY 290, 295 [1942]; Elghanian v Harvey, 249 AD2d 206[1998]). Present—Scudder, P.J., Hurlbutt, Fahey, Green and Pine, JJ.