Construction costs flame broil tenant, landlord

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A dispute over alleged construction cost overruns at a new Burger King in Greece is broiling between the building landlord and the restaurateur, and the first Whopper hasn’t even been cooked.

Maiden, LLC has demanded payment on $566,530 in costs associated to the building of a Burger King in the southeast corner of the Tops Friendly Markets plaza at Mt. Read Boulevard and Maiden Lane. That bill is on top of the initial anticipated construction costs of $850,000.

The nonpayment has resulted in a notice of default by Maiden, LLC dated March 12.

However, the tenant, James G. Cammilleri, says he is not responsible for the additional expenditures because the lease called for a cap of building costs at $850,000, according to papers filed Tuesday in state Supreme Court in Monroe County.

The lawsuit asks the court to allow Cammilleri to take possession of the building immediately and proceed with preparing the restaurant for opening, and also demands an accounting of all costs associated with construction.

At issue is the definition of construction costs, as well as the lease clause that states the landlord pay for “all of the work necessary for the construction of a standard Burger King prototype restaurant.”

The landlord’s work, the lease says, will not exceed $850,000. The lease goes on to say that if the costs for the landlord’s work does go above $850,000, the tenant shall be responsible.

But Cammilleri contends he was billed for “landlord’s work” that actually fell under the category of “construction costs,” and that means he’s not responsible.

Court papers also say the additional costs were the result of Maiden, LLC, using two of its affiliated companies, Mark IV Construction and Newmark Development Co., Inc.

“The primary issue herein is the meaning of landlord’s ‘cost’ and ‘work’ and whether those terms include the cost of two other companies plaintiff never contracted with,” the lawsuit says.

West General Contractors LLC was the contractor, at the recommendation of Cammilleri. The firm built at least two other Burger Kings owned by Cammilleri — on Humboldt Street in Rochester and in the Ontario County town of Farmington — and in each case “West completed construction for less than $850,000,” court papers say.

“They always come in at a certain price,” said Cammilleri’s attorney, Arnold R. Petralia of Petralia, Webb & O’Connell, PC. “Then the landlord tacked on additional prices, like inspections done by subsidiary companies (of the landlord). They used West but then tacked on costs by using two of their own subsidiaries.

“They’re claiming that when they have a subsidiary come in and do inspections, that’s (construction) work. I’m saying, ‘No, that’s not work.’ That’s where we’re at.”

The law firm representing Maiden, LLC could not be reached for comment.

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