CLIFTON PARK — The long-running legal tussle over a new Sonic restaurant in Clifton Park will run a while longer.
The state Appellate Division on Thursday overturned a lower court’s summary judgment in favor of DCG Development Co. in the matter of the drive-in hamburger stand planned for a strip mall owned by DCG at 800 Route 146.
The matter now goes back to Judge Thomas Buchanan at state Supreme Court for further litigation. And a breach of contract claim remains in litigation as well.
Attorney Paul Goldman, representing DCG, said Friday that he and DCG are disappointed in the ruling, feel it is incorrect, and are considering their next move.
Attorney Adam Cooper, representing Fast Eats Clifton Park LLC, said Friday he hasn’t discussed the ruling or the next step with Fast Eats owner Gene Nachamkin. The Sonic was first proposed in the spring of 2018; the passage of time and the COVID-19 pandemic may have changed some of the considerations surrounding it, Cooper said.
While not the largest burger franchise in America, Sonic does have a loyal following, and it uses a different model than most other chains: Carhops will bring food out and customers can eat in their cars. It has more than 3,500 locations in 46 states.
The Clifton Park location would have been the third in the Capital Region. That honor went instead to a new Sonic in Albany as the Clifton Park proposal bogged down.
The plan won town Planning Board approval but soon went off the rails, with claims and counterclaims over breach of contract and forfeited rent.
At the heart of it all is an underwater stormwater management system for the parking lot — DCG and Fast Eats couldn’t agree on who should pay to build it or even whether it was needed.
In June 2019, Buchanan granted DCG summary judgment that Fast Eats had breached its contract by not installing the stormwater system.
The Appellate Division on Thursday reversed that and sent the matter back to Buchanan.
In the ruling, the Appellate justices used some form of the word “ambiguous” 12 times in reference to the lease agreement between DCG and Fast Eats. The lease runs to 40 pages of small type, but Cooper said that the ruling came down to something not contained in the lease agreement.
The Four Corners Rule dictates that only what is contained within the boundaries of a contract has bearing on the agreement and the parties to it — what else they say to each other verbally or in writing does not.
Except when it does — there’s nothing in the contract about a stormwater system. Buchanan in his ruling cited evidence outside the contract that Fast Eats had accepted responsibility for making improvements. The Appellate Division in its ruling cited evidence outside the contract that DCG had accepted responsibility.
So the case goes back to Buchanan, unless either side decides to give way.
“Other questions need to be resolved,” Cooper said.