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Atul Shah v. Barry F. Jones

November 16, 2012

ATUL SHAH, PLAINTIFF-APPELLANT,
v.
BARRY F. JONES, DEFENDANT-RESPONDENT, AND PASSAIC LOFTS, L.L.C., DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2694-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 1, 2012

Before Judges Espinosa and Guadagno.

Plaintiff Atul Shah appeals from the October 11, 2011 order of the Law Division dismissing his complaint against defendant Barry F. Jones, as outside the six-year statute of limitations. Based on a thorough review of the record below, we affirm.

Defendant Jones leased commercial space in a building owned by Shah. The term of the lease began December 1, 2001, and ended December 1, 2003. The rent for the first year was $3060 per annum ($255 per month), increasing to $3213 per annum ($267.75 per month) for the second year. The lease was signed by both parties on December 2, 2001, and again on December 3, 2001, when a notary public was available to witness their signatures.

At the end of the term of the lease, Jones remained as a holdover tenant. Shah continued to accept rent from Jones without protest and without invoking a clause in the lease which provided for liquidated damages when the tenant fails to surrender possession at the expiration of the term.

On March 10, 2004, Shah sent Jones a "Notice to Surrender and Pay Rent," as follows:

(1) Your lease expired on December 1, 2003. You are hereby notified to surrender the possession of the Premises immediately to me instead of continuing as a holdover tenant.

(2) You are in default of Article number 167 of lease captioned "Indemnity and Insurances." You are hereby notified to cure the said default.

(3) You are in arrears of payment of rent pursuant to the terms of the lease. You are hereby notified to make payments and make your account up to date.

There is no evidence that Shah provided Jones with any specifics as to what arrears he considered outstanding.

Shah sold the property to Passaic Lofts on May 27, 2004. At closing, Shah executed an assignment of all of his rights to existing leases for the property including Jones's lease. Jones continued his tenancy after the sale to Passaic Lofts until September 2005, when he vacated.

Shah filed this complaint on May 26, 2010. On July 14, 2010, Jones filed an answer denying the allegations and interposing several defenses including the statute of limitations. Jones also demanded a written statement of damages pursuant to Rule 4:5-2.

When the parties appeared for trial on September 19, 2011, plaintiff told the trial court he was seeking back rent of $65,000. When asked by the judge how he calculated this amount, Shah explained that when the lease expired in December 2003, the "base rent" was $300 per month but he raised the rent to "about $390" per month. Shah conceded that there was nothing in ...


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