MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR
Michael D. Ricciuti, Justice
action arises out of a lease agreement between the property
owner, plaintiff, Braintree Property Associates, LP ("
Braintree" ), the lease holder, defendant Dr. Wu, LLC,
d/b/a Emack & Bolios (" Wu" ), for which Robert
Rook is the sole owner and manager. Defendants Rook and
Franco Marzouki guaranteed Wu's obligations to Braintree.
There is no dispute that Wu breached its lease by vacating
the property it leased from Braintree before its lease was
up. Plaintiff moves for summary judgment on its claims
against Wu, Rook and Marzouki. All defendants oppose. Wu and
Rook cross-move for summary judgment against Braintree,
improbably claiming that Braintree is entitled to no lost
rent at all under the terms of Braintree's own
Lease, which Braintree opposes. Marzouki moves for summary
judgment on his cross claim for indemnification from Rook,
which Rook opposes.
issue at the core of this case is a straight-forward dispute
about the measure of damages arising from Wu's undisputed
breach of its lease with Braintree. Based on the lease and
the undisputed facts, in consideration of the parties'
memoranda of law and oral arguments, and for the reasons that
follow, plaintiff's motion for summary judgment is
ALLOWED. Wu's cross motion for summary judgment
other reasons, Marzouki's motion for summary judgment on
his cross-claim against Rook is DENIED.
reviewing a motion for summary judgment, the Court views the
evidence in the light most favorable to the non-moving party
and draws all reasonable inferences in his favor. Jupin
v. Kask, 447 Mass. 141, 143, 849 N.E.2d 829 (2006),
citing Coveney v. President & Trustees of the College
of the Holy Cross, 388 Mass. 16, 17, 445 N.E.2d 136
operates the South Shore Plaza, a shopping mall in Braintree.
Rook is the sole owner and manager of Wu, which does business
as Emack & Bolios, an ice cream seller.
about July 25, 2011, Wu, as tenant, entered into a lease
(" Lease" ) with Braintree for commercial space at
the South Shore Plaza. The lease had a five-year term and
required Wu to pay rent and fees. The lease term was to
commence May 1, 2011 and end May 1, 2016.
about July 25, 2011, defendants Marzouki and Rook each
executed a joint and several guaranty of Wu's lease
in June 2014, Wu stopped paying rent, and did not pay any
rent thereafter. Neither Rook nor Marzouki made good on the
rent Wu failed to pay to Braintree. On October 22, 2014, Wu
ceased business, and on October 30, 2014, vacated the
sent a demand letter to Wu dated November 26, 2014, which was
copied to Marzouki and Rook and guarantors. That letter did
not terminate the Lease but demanded all rental payments due
under it, discounted to present value as permitted under the
Lease and as reflected in a spreadsheet enclosed with the
letter. The alleged damages totaled $126,773.55. The letter
stated that Braintree " will assume the debt is valid
unless the undersigned receives notice from Tenant within
thirty (30) days after its receipt of this letter that Tenant
disputes the validity of the debt, or any portion
thereof," in which event " the undersigned will
obtain verification of the debt and mail a copy of such
verification to the Tenant, upon request by the Tenant"
but that " [i]f the total sum is not paid within thirty
(30) days from the date of this letter, the undersigned will
attempt to obtain a judgment" against Wu. In response,
Wu did not pay the rent demanded. Instead, Wu wrote back by
letter dated December 5, 2014 and claimed that the debt was
disputed and demanded verification of it and noted that
Braintree's letter did not terminate the Lease. Braintree
did not respond, but filed suit.
Lease stated that Wu would be in default if it abandoned or
vacated the Premises, as it did. Lease, § 18.1(f). Among
Braintree's remedies were to collect the full rent due,
terminate the Lease by giving such notice to Wu or re-enter
and take possession of the Premises. If Braintree re-entered
or took possession of the premises, Braintree could terminate
the lease and demand that Wu pay all of the rent due under
the Lease immediately or it could allow the Lease to continue
and deduct from the rent owed any rent Braintree was able to
collect on re-letting on an ongoing basis:
If Landlord re-enters the Premises . . . or if it takes
possession pursuant to legal proceedings or otherwise, it may
either terminate this Lease, but Tenant shall remain liable
for all obligations arising during the balance of the
original stated term as hereafter provided as if this Lease
had remained in full force and effect, or it may, from time
to time, without terminating this Lease, make such
alternations and repairs as it deems advisable to relet the
Premises, and relet the Premises . . . for such term . . .
and at such rentals and upon other terms and conditions as
Landlord in its sole discretion deems advisable; upon each
such reletting all rental received by Landlord therefrom
shall be applied, first, to any indebtedness other than rent
due hereunder from Tenant to Landlord; second, to pay any
costs and expenses of reletting, including broker's and
attorneys fees and costs of alterations and repairs; third,
to rent due hereunder, and the residue, if any, shall be held
by Landlord and applied in payment of future rent as it
becomes due hereunder.
If rental received from such reletting during any month are
less than that to be paid during that month by Tenant
hereunder, Tenant shall immediately pay ...