On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-1029-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Skillman and Winkelstein.
Defendant Yardley Associates is the owner of a forty-acre mall located in Cinnaminson Township. Yardley leased the property to defendant Mall Associates, LLC,*fn1 which leased parcels to multiple tenants, including defendant Casual Male, Inc. Pursuant to a redevelopment project, the Township condemned the property; the Mall and the Township ultimately agreed upon compensation for the Mall of $10,739,000, and the Township deposited that sum into court.
In this appeal, Casual Male challenges the trial court's November 17, 2006 order that permitted the Mall to withdraw the condemnation funds and dismissed Casual Male's application seeking approximately $900,000 of those funds. Casual Male claims that the trial court deprived it of standing to withdraw a share of the condemnation funds, and that the court substantively erred in determining that Casual Male was not entitled to any portion of the condemnation award. We conclude that Casual Male's arguments are without merit and affirm the trial court's order.*fn2
The facts are straightforward. Casual Male leased a 4300 square foot store from the Mall; the lease was in effect at the time of the condemnation proceedings. The lease contained the following language pertaining to the condemnation award:
If during the term of this Lease, as a result of a condemnation proceeding . . . a substantial or material portion of the Premises is taken, Tenant may, within thirty (30) days following the date of such taking, terminate this Lease upon written notice to Landlord, which termination shall be effective as of the date of such taking. . . . Nothing herein contained shall prevent Landlord and Tenant from prosecuting claims in any condemnation proceedings for the value of their respective interests. Landlord shall be entitled to the condemnation award attributed to the real property, and Tenant for the taking of its fixtures and equipment, leasehold improvements, relocation expenses, goodwill loss of business or other award not related to the value of the real property. [(emphasis added).]
The Township filed its complaint for condemnation on April 11, 2005, naming multiple defendants, including Casual Male. On August 12, 2005, the trial court entered a judgment of condemnation, subject to certain conditions, none of which apply to Casual Male's claim. On April 28, 2006, the court entered an amended order for final judgment, which included the appointment of commissioners.
The Township filed its declaration of taking on September 25, 2006. Two days later, the court executed a consent order, fixing compensation at $10,739,000, and entering judgment for said sum in favor of the Mall.
On September 29, 2006, the Mall filed a motion to withdraw funds. On October 19, 2006, Casual Male filed a verified cross-claim and order to show cause and a third-party complaint against the Mall. In each action, Casual Male demanded $929,412.27 of the condemnation award for leasehold improvements, fixtures, equipment, relocation expenses, and loss of business. The next day the court dismissed Casual Male's pleadings, but ordered that sum be held in escrow pending further order.
On November 3, 2006, Casual Male argued its claim before the trial judge. The judge acknowledged that while the pleadings were dismissed because they were not technically correct, Casual Male's claim was not substantively dismissed.
Following argument by counsel, the court denied Casual Male's claim to any portion of the condemnation award. The judge found that the lease agreement "[gave] the landlord and tenant the right to fight for an allocation of the fund . . . only to the extent that the condemnation award . . . ...