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Arnaldo Batista and Carlos Figueiredo As His A/I/F v. Exclusive Stores Ltd. and Naishedh Mehta

January 13, 2011

ARNALDO BATISTA AND CARLOS FIGUEIREDO AS HIS A/I/F, PLAINTIFFS-RESPONDENTS,
v.
EXCLUSIVE STORES LTD. AND NAISHEDH MEHTA, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-3787-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 3, 2011

Before Judges Lisa and Reisner.

Defendants Exclusive Stores Ltd. (Exclusive) and Naishedh Mehta appeal from an August 20, 2009 judgment in favor of plaintiffs Arnaldo Batista and Carlos Figueiredo, and from a February 19, 2010 order denying defendants' motion to vacate the judgment. We affirm, substantially for the reasons set forth by Judge Vena in his Statement of Proceedings in Lieu of Transcript, dated February 19, 2010.

I

These are the most pertinent facts. On October 16, 2000, Batista and Exclusive entered into a commercial lease for a five-year term, commencing on November 1, 2000, and ending on October 30, 2005. The lease committed the tenant to paying a total of $416,697 as rent according to the following formula:

LEASE YEAR ANNUAL BASE RENT MONTHLY RENT 1 $80,400 $6700 2 $80,400 $6700 3 $83,616 $6968 4 $85,288 $7107 5 $86,993 $7250

The lease also contained a provision obligating defendants to pay a percentage of the property taxes.

On November 3, 2000, Mehta signed a notarized personal guaranty for the lease.

Defendants paid the agreed-upon monthly rent of $6700 for seven months, from November 2000 to May 2001. They then decreased their rental payments to $6000 per month for seven months, from June 2001 to December 2001. Their payments fell to $5000 for four months, from January 2002 to April 2002, and increased to $5250 for thirty-four months, from May 2002 to February 2005. After one payment of $5000 in March 2005, they made payments totaling $5650 each month in irregular multiple deposits from April 2005 until November 2005. No payments were made in December 2005 or January 2006. Exclusive vacated the premises on January 31, 2006. Because the lease expired in October 2005, Exclusive was a holdover tenant for the months of November 2005, December 2005 and January 2006.

After the tenant vacated the property, Batista's counsel sent a letter to Stanley Young, the attorney who had represented Mehta in negotiating lease. The letter asserted that defendants held over for three months after the expiration of the lease, did not provide the requisite 120 days notice prior to vacating, and owed plaintiffs a total of $73,069.85. There is no evidence that Young replied to the letter or asserted any claim that the lease had been modified.

Plaintiffs filed suit against defendants on May 9, 2007. A four-day jury trial resulted in a favorable verdict for plaintiffs. On August 20, 2009, Judge Vena entered a judgment of $141,725.33 against defendants, who filed this appeal on September 30, 2009.

On December 9, 2009, while the appeal was pending, defendants filed a motion for a remand to permit them to file a Rule 4:50 motion in the trial court based on alleged newly discovered evidence. In a certification supporting the motion, Mehta asserted that he originally attempted to contact Young immediately after he was served with the complaint. He then learned that his former counsel was terminally ill. In June 2008, Mehta again ...


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