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Central Paper Distribution v. International Records Storage and Retrieval Service

September 28, 1999

CENTRAL PAPER DISTRIBUTION SERVICES AND BERKOWITZ COMPANY, L.P., PLAINTIFFS-APPELLANTS,
v.
INTERNATIONAL RECORDS STORAGE AND RETRIEVAL SERVICE, INC., SANFORD B. WINNERMAN, LAWRENCE J. WINNERMAN, JONATHAN WINNERMAN, AND 110 EDISON PLACE, L.L.C., DEFENDANTS-RESPONDENTS.



Before Judges Kestin, Wefing and Carchman.

The opinion of the court was delivered by: Kestin, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: May 25, 1999

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County.

Plaintiffs appeal from the trial court's order granting defendants' motions for summary judgment and dismissing the matter, and from the trial court's denial of plaintiffs' cross-motions to modify a prior order and compel certain discovery. The trial court's order made no mention of the Disposition of defendants' counterclaims. In the absence of any indication to the contrary by any of the parties, we take the trial court's order to have been final, i.e., that the counterclaims were also dismissed. See Pressler, Current N.J. Court Rules, comment 2 on R. 2:2-3 at p. 468 (1999 ed.) ("It is . . . well settled that in order for a final judgment to be appealable, it must be final both as to all issues and all parties. If it is not final, respondent . . . has the responsibility to move for its dismissal[.]") After reviewing the record in the light of the written and oral arguments of the parties, we affirm in part and reverse in part.

Because the matter arose on defendants' motion for summary judgment, we view the facts in the light most favorable to plaintiffs, as the trial court was required to do. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plaintiffs owned and operated a commercial building in Newark. In 1993, they leased the fourth and sixth floors to defendant International Records Storage and Retrieval Service, Inc. (International) for ten years. Paragraph 31 of the lease established International's right to purchase the building if plaintiffs received an offer from another to purchase; and it set forth the mechanics governing the exercise of that right.

Plaintiffs received a letter dated November 10, 1995 from the attorneys for KJS, Inc. (KJS), a company also in the records storage business, which contained an offer to purchase the building on terms including the following:

1. Payment . . . of $200,000 upon the satisfaction of all conditions precedent.

1. Lease . . . to KJS of the entire Premises for a term of ten (10) years for an annual rent of $472,800[.] * * * [Landlord] will assign all existing leases to KJS. The lease to KJS shall be subject to all existing leases.

1. At the end of the Lease Term . . . KJS will have an option to purchase the Premises for $3,550,000 payable as follows. . . .

In a letter of the same date, plaintiffs' attorney, Paul Petigrow, transmitted the offer to International:

As you are aware this office represents Berkowitz Company, L.P. and Central Paper Distribution Services, Inc. In accordance with the terms of the . . . lease, notice is hereby given of the Landlord's intention to accept the Initial Offer ...


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