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January 31, 1988

M. ALFIERI CO., INC., Defendant

The opinion of the court was delivered by: WOLIN

 In this civil rights action, defendant M. Alfieri Co., Inc. ("Alfieri") renews its motion for summary judgment against the claim of plaintiff Randhir Chauhan. For the reasons set forth below, defendant's motion for summary judgment is granted; however, the Court will vacate its previous order of August 5, 1988, and now orders that the sum of $ 2,500 which plaintiff deposited with the Clerk of the Court be returned to the plaintiff.


 Plaintiff instituted this civil rights action against Alfieri in April of 1987, alleging intentional discrimination in the rental of retail space under 42 U.S.C. § 1981 and N.J.S.A. 10:5-1 et seq. The episode in question began in November of 1985, when plaintiff, an Indian national, walked into Alfieri's office in Metro Park III ("Metro Park"), a 15 story commercial office building in Edison, New Jersey, developed and owned by Alfieri. Plaintiff inquired into the rental of retail space in the lobby of Metro Park for purposes of operating a sundry shop business similar in nature to a number of other sundry shops which plaintiff has purchased, sold and operated since his arrival in the United States 12 years ago. At Metro Park plaintiff spoke to Harvey Schultz, the Executive Vice President of Alfieri. Although it was not part of his normal duties to field such inquiries, Schultz spoke to plaintiff because Alfieri had not yet hired anyone to meet and negotiate with potential tenants.

 A few weeks later, on December 6, 1985, Schultz sent plaintiff a letter indicating that: "At the present time, we are not able to make a commitment for your type of business. We would appreciate it if you would call us in about six months to ascertain the status of our leasing capabilities. We are returning the copy of your Form 1040 for the time being." Plaintiff's Opposition Brief, Exhibit A.

 Schultz later testified that at the time of plaintiff's inquiry, Metro Park was only occupied by one corporate tenant who occupied less than six out of 15 available floors, and that the building could not support plaintiff's business. Schultz also stated that Alfieri was primarily concerned with renting all the unoccupied space in the building as office space, and thus did not want to commit any space to retail stores at that time. Defendant's Memorandum in Support of Renewed Motion for Summary Judgment, at p. 4.

 Sometime in the middle of December, 1985, Stephen Del Guercio began to work for Alfieri as a leasing representative for the Metro Park building. His primary focus was to obtain tenants for the remaining office space in the building. However, Del Guercio also was responsible for finding tenants for the limited retail space available in Metro Park.

 In January, 1986, about six weeks after plaintiff's contact with Schultz, Jerry Landau inquired into the rental of space for a sundry shop. Del Guercio proceeded to negotiate with Landau over a period of approximately three months. By April of 1986, Landau and Del Guercio had apparently agreed in principle on the terms of a lease, and the parties were only awaiting final approval of Landau's Small Business Administration loan before Landau would execute the lease agreement.

 Plaintiff re-entered the picture on April 18, 1986, telephoning the defendant to determine if rental space was available. This was plaintiff's first contact with Alfieri since his meeting with Schultz. The evidence also indicates that Schultz never informed Del Guercio about plaintiff's original inquiry into retail space. Del Guercio apparently told plaintiff that someone else was negotiating for the sundry shop space, but Del Guercio asked plaintiff to come in on April 21, 1988, and pick up a standard form lease to review. Plaintiff met with Del Guercio on April 21. The parties discussed the nature of plaintiff's business and the rental of space at Metro Park. Del Guercio advised Chauhan to supply him with copies of Chauhan's recent Federal tax returns, as well as a financial statement. Plaintiff returned the next day with the requested information, and Del Guercio and Chauhan engaged in further discussions. Del Guercio directed his secretary to prepare a proposed lease from a Lease Information Form.

 Following the parties' second meeting on April 22, 1986, plaintiff tried to contact Del Guercio to make an appointment to bring in a proposed floor plan, but was told Del Guercio was not available until April 25th. Meanwhile, on April 24, 1986, Landau called to inform Alfieri that he obtained final approval for his Small Business Administration financing and wanted to come in and sign the lease which had previously been negotiated between the parties. Landau came to Metro Park on April 25, 1986 and signed the lease, which was subsequently executed by Schultz on behalf of Alfieri. Plaintiff also came to Metro Park on August 25, presenting his proposed floor plan to Del Guercio. At that time Del Guercio informed plaintiff that the space for the sundry store had already been rented, and told plaintiff he would keep any information provided by plaintiff on file for future reference in the hopes of doing business with plaintiff.

 On April 27, 1987, plaintiff filed suit against Alfieri. Plaintiff contends that Alfieri refused to lease retail space to plaintiff based on plaintiff's status as a non-white person. Defendant contends that Schultz originally met with Chauhan merely as a courtesy, and that Schultz had neither the responsibility or intention to lease space for a sundry store. Defendant further contends that Del Guercio's decision to negotiate with plaintiff in April, 1986, was motivated by a sound business judgment to create an option for Alfieri in case the contemplated lease with Landau fell through. Considering that Alfieri had negotiated with Landau for three months, defendant argues it was only proper to enter the lease agreement with Landau once he was ready to sign, rather than with Chauhan.


 A. Plaintiff's § 1981 ...

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