1551 BOSTON POST ROAD ASSOCIATES, LLC v. COLIN CANTALUPO.

2008 Ct. Sup. 18824
No. CV 07 500 2588Connecticut Superior Court Judicial District of Middlesex at Middletown
December 1, 2008

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
CLARANCE J. JONES, Judge.

In this litigation plaintiff 1551 Boston Post Road Associates, LLC (hereafter Boston Post) seeks to enforce defendant Colin Cantalupo’s guaranty of rental and related payments under a lease for a bridle shop operated by Tails and Trains, LLC, of which he is a member.

Complaint
According to the allegations in the Complaint plaintiff Boston Post as landlord entered into a written lease with Tails and Trains, LLC, as tenant for the use of 1635 square feet of gross leasable area in Building Unit 8, Boston Post Road, Westbrook, Connecticut, as a bridle shop. The least covered an initial term of five years commencing September 1, 2006, for an annual basic rental in the amount of $32,700, with a tenant’s fractional share of real estate taxes, insurance, and common area maintenance. Defendant Colin Cantalupo personally guaranteed the obligations of Tails and Trains, LLC, under the lease up to a maximum of 18 months of the Tenant’s liability. Tenant Tails and Trains vacated the premises without notice on February 23, 2007, and has not made the basic rental payments, nor additional payments for the fractional share of real estate taxes insurance and common area maintenance since March of 2007.

Boston Post claims that defendant Colin Cantalupo is liable under his guaranty “in the amount of $49,050 representing eighteen (18) months rent, $4,944.06 representing eighteen (18) months of the Tenant’s proportionate share of real estate taxes at $274.67 a month and $1673.10 representing eighteen (18) months of the Tenant’s proportionate share of insurance and $92.90 a month, for a total due and owing of $55,667.16.” (Complaint, para 9.)

Answer and Counterclaim
Colin Cantalupo admits signing the personal guaranty. However, he denies that he owes money to plaintiff Boston Post. In his First Special CT Page 18825 Defense, Colin Cantalupo asserts that “[t]he lease was induced by fraud in that the plaintiff promised business referrals to [him] as an inducement to sign the lease, which referrals were never provided.” In his Second Special Defense Colin Cantalupo alleges that “[t]he signing of the lease was induced by misrepresentation in that the plaintiff promised business referrals to [him].”

The defendant has filed a Counterclaim by which he seeks damages predicated upon two causes of action, to wit: Fraud, and Misrepresentation. Count One, captioned Fraud, sets out the principal allegation that the plaintiff’s duly authorized representative induced the defendant to sign the lease and the defendant to personally guarantee the lease based upon a fraudulent promise to provide referrals. Count Two, captioned Misrepresentation, restates the essential allegations of Count One, and asserts that the promise of the referrals is a misrepresentation which induced the defendant to sign the lease as well as the guaranty.

Analysis
The first paragraph of the Personal Guaranty sets out the coverage of exposure. It states

[f]or the purpose of inducing Landlord to enter into this Lease with Tenant and in consideration thereof, Guarantor guaranties to Landlord, its successors and assigns, all the obligations of Trails and Trains, LLC under the foregoing lease. (Emphasis added.)

The lynchpin of defendant Colin Cantalupo’s defense and counterclaim is his assertion that plaintiff 1551 Boston promised to provide Trails and Trains, LLC, and to him a bridal list of five thousand names, or some such significant number of names. The alleged promise to provide a bridle list of names is not included in the lease and not included in the written guaranty. (See Exhibit 1.)

Defendant Colin Cantalupo claims that the promise to provide the list was made by Simeon Ebedes to Ruth Cantalupo, his spouse and agent-employee (transcript, p. 59-60) and that when she mentioned “the list” in the presence of Mr. Claudio Marasco, the plaintiff’s manager (transcript, p. 91) he nodded his head (transcript, p. 62). The defendant also claims that he discussed with Claudio Marasco that the list was promised and that Claudio Marasco was in agreement as to the list. (Transcript, p. 62.) Claudio Marasco flatly denied that he ever promised to provide such a list (transcript, p. 81). CT Page 18826

The defendant argues that the hearsay testimony of what Simeon Ebedes, a person associated with another entity, and not an employee or agent of plaintiff said as to the bridle referral list, is inadmissible in establishing his agency to Boston Post, and thus the substance of the testimony as to the promised list is not imputable to Boston Post.[1]
The Court agrees.

From the testimonial and documentary evidence presented the Court finds that plaintiff Boston Post has proved its claim for damages under the guaranty given by Colin Cantalupo. That amount is $52,558.00 and represents unpaid rent, taxes and insurance under the lease. The Court further finds that Colin Cantalupo has not proved his Count in Fraud, nor his Count in Misrepresentation in his Counterclaim.

Judgment and Damage Award to the Plaintiff
Accordingly, the Court enters a judgment in favor of plaintiff Boston Post on its Complaint in the amount of $52,558.00, plus costs. The Court also enters a judgment in favor of plaintiff Boston Post on defendant Colin Cantalupo’s Counterclaims.

[1] It is noted that Simeon Ebedes was not presented as a witness though deposition testimony or otherwise.

CT Page 18827

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