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Bank of America v. Philip Kushner Associates

June 18, 2008

BANK OF AMERICA, PLAINTIFF-RESPONDENT,
v.
PHILIP KUSHNER ASSOCIATES, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Warren County, C-16005-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 9, 2008

Before Judges R. B. Coleman and Lyons.

Defendant Philip Kushner Associates (PKA) appeals from a March 29, 2007 order of the Chancery Division, Warren County, compelling it to arbitrate claims asserted by its tenant, plaintiff Bank of America (the Bank). Although the Bank ultimately seeks reimbursement of sums expended for repairs following a fire that damaged the leased premises, the sole issue on this appeal is the propriety of the trial court order compelling arbitration. After reviewing the record in light of the arguments advanced on appeal, we affirm.

On September 1, 1989, the Bank's predecessor entered into a lease agreement with PKA for space in a two-story condominium unit located in Hackettstown. The Bank is the current lessee of the premises. The clause relating to arbitration provides as follows:

30. Arbitration. (a) Any controversy, claim or dispute arising out of or relating to this Lease, or the breach thereof, shall be settled and determined by arbitration and, except as provided herein, by the statutes and laws of the State of New Jersey pertaining to Arbitration and Award.

(b) Each party shall name an arbitrator within fifteen (15) days after a demand for arbitration by the other party.

In addition, the lease contains the following pertinent clauses:

12. Limitation of Liability: (a) Landlord shall not be held responsible for and is hereby expressly relieved from any and all liability by reason of injury, loss or damage to any person or property in the Leased Premises due to any cause whatsoever and whether the loss, injury or damage be to the person or property of Tenant . . . .

13. Insurance. (a) Tenant, at Tenant's sole cost and expense, shall maintain and keep in effect throughout the term of this Lease:

(i) Insurance against loss or damage to all of Tenant's improvements upon the Leased Premises, as well as Tenant's trade fixtures and other contents of the Leased Premises, by fire . . . .

Tenant shall deliver certificates of insurance evidencing the insurance coverages referred to above.

14. Damage, Fire or Other Casualty. (a) In case of any damage to or destruction of the Leased Premises or any part thereof, Tenant shall promptly ...


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