Justice Elizabeth Emerson
Omnipoint moved for summary judgment on the issue of damages, despite that the issue of liability has not yet been determined. Plaintiffs cross-moved for the same relief, and leave to amend the complaint. The court noted it was unaware of any authority permitting it to make a summary determination on the amount of damages plaintiffs may be entitled to before deciding defendant’s liability. As such, it denied plaintiffs’ cross-motion insofar as it sought summary judgment on the issue of damages. Plaintiffs alleged they were entitled to recover from Omnipoint the entire balance of unpaid rent for the initial five year term of the Omnipoint lease, plus all five, five-year extensions. Omnipoint sought to limit plaintiffs’ damages to the balance of unpaid rent for the initial five year term without extensions. The court noted the lease gave Omnipoint the right, but not the obligation, to extend its term, and does not contain an acceleration clause, thus no action for future rent could be brought in the absence of same. It ruled plaintiffs could only recover from Omnipoint for installments due as of the filing date of their claims, holding plaintiffs could not recover for rent due after Sept. 21, 2007, granting Omnipoint’s motion dismissing plaintiff’s claim for damages under the lease for $853,852.23.
