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Ivy Hill Park Apartments v. GNB Parking Corp.

Decided: February 1, 1989.

IVY HILL PARK APARTMENTS, PLAINTIFF,
v.
GNB PARKING CORPORATION, DEFENDANT



Honigfeld, J.s.c.

Honigfeld

This opinion amplifies a decision by this court in a summary action between landlord and tenant for recovery of commercial premises due to violation of lease covenants. The case raises the novel question of whether the specificity requirements of N.J.S.A. 2A:18-53(c)(4) for the notice to terminate the tenancy and quit the premises may be satisfied if such notice incorporates by reference a sufficiently specific recent notice to cease or cure the violations. This court answers the question affirmatively.

Under the lease in question, Ivy Hill Park Apartments (hereafter "Ivy Hill" or "owner") leased two large parking areas servicing a large apartment complex in Newark, near its border with Maplewood, South Orange and Irvington to GNB Parking (hereafter "GNB" or "tenant"), for a ten-year period commencing January 1, 1985.

The most critical portion of the lease, paragraph 17(1), entitled "Default," provides in pertinent part:

If Tenant defaults in fulfilling any of the covenants of this lease . . . then, . . . upon Owner serving a written five (5) days notice upon Tenant specifying the nature of said default and upon the expiration of said five (5) days, if Tenant shall have failed to comply with or remedy such default or if the said default or omission complained of shall be of a nature that the same cannot be completely cured or remedied within such five (5) day period and shall not thereafter with reasonable diligence and in good faith proceed to remedy or cure such default, then Owner may serve a written three (3) days notice of cancellation of this lease upon Tenant, and upon expiration of said three (3) days, this lease and the terms thereunder shall end and expire as fully and completely as if the expiration of such three (3) day period were the day herein definitely fixed for the end and expiration of this lease and term thereof and Tenant shall then quit and surrender the demised premises to Owner but Tenant shall remain liable as hereinafter provided.

The lease allows a right of re-entry by Ivy Hill in the event of breach of a lease covenant by GNB and Ivy Hill's compliance with paragraph 17(1). The instrument contains several covenants which were crucial to the ultimate outcome in this case. Paragraph 46 states:

Tenant shall at its own expense maintain and keep the demised premises in good repair including, without limitation, any repairs to the booths and control arms, . . . repairs to the pavement. . . .

Paragraph 54 required tenant to "provide separate attendants for each of the parking booths on a 24 hour per day and 7 day per week basis." Paragraph 58 stated that in the event of damage to booths and arms by fire or other casualty, repairs were to be done by tenant at its expense.

The document, in paragraph 27, entitled "Bills and Notices," permitted service of any notice or communication which the owner might desire or be required to give to tenant by "certified mail" at the "business address" of tenant. Its introductory paragraph designated the principal office of GNB as being "c/o Charles Fine, Esq., 1501 Broadway, New York, N.Y. 10007."

Ivy Hill sent a letter dated May 25, 1988 to Bernard Wittie, president of GNB, entitled "Notice of Violation of Lease Terms -- Opportunity to Cure," by both regular and certified mail at the "c/o Charles Fine, Esq." address. There was a return receipt signed by a representative of Fine's office. The letter quoted the aforementioned paragraph 17 of the lease dealing with default of tenant, as well as paragraphs 45 (general obligation of tenant to keep demised premises in good repair), 54 (requiring constant manning of each booth for the lot) and 58 (damages to booths and arms), among other paragraphs. Tenant allegedly violated these provisions. An inspection of the lot was said to have revealed the existence of potholes, an unrepaired guardhouse, and unrepaired electrical arms. Also cited was a failure to constantly man all booths. The letter demanded that these lease violations be cured within five days, or landlord would avail itself of the three-day notice of termination procedure and proceed with any required summary dispossess action.

Another letter, dated June 10, 1988, was sent by Ivy Hill to GNB in the same manner and to the ...


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