Braintree Property Associates, LP v. Marzouki, et al. (Lawyers Weekly No. 09-038-17)
COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 15-00144 BRAINTREE PROPERTY ASSOCIATES, LP vs. FRANCO MARZOUKI, DR. WU, LLC, D.B.A EMACK & BOLIOS AND ROBERT ROOK and FRANCO MARZOUKI, CROSS-CLAIM PLAINTIFF, vs. ROBERT ROOK, CROSS-CLAIM DEFENDANT MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT This 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. The 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 2 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 is DENIED. For other reasons, Marzuki’s motion for summary judgment on his cross-claim against Rook is DENIED. FACTS In 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 (2006), citing Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17 (1983). Braintree 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. On or 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. On or about July 25, 2011, defendants Marzouki and Rook each executed a joint and several guaranty of Wu’s lease obligations. Beginning 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 […]