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Puccini Foods, LLC v. Abbott Industries, Inc.

Superior Court of New Jersey, Appellate Division

December 2, 2013

PUCCINI FOODS, LLC, Plaintiff-Appellant,
v.
ABBOTT INDUSTRIES, INC., HAROLD SCHECK and FLORENCE SCHECK a/k/a FLO SCHECK, Defendants/Third-Party Plaintiffs-Respondents,
v.
JOHN O'MARA, Third-Party Defendant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 21, 2013

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3554-10.

Nikaela Jacko Redd argued the cause for appellant (Gibbons P.C., attorneys; Ms. Redd, on the briefs).

Cameron A. Welch argued the cause for respondents (Cole, Schotz, Meisel, Forman & Leonard, P.A., attorneys; Mr. Welch, of counsel and on the brief; Eric S. Latzer, on the brief).

Before Judges Lihotz and Ostrer.

OPINION

OSTRER, J.A.D.

Plaintiff Puccini Foods, LLC (Puccini) appeals from a judgment, after a bench trial, dismissing its claim of constructive eviction from commercial premises it had leased from its landlord, defendant Abbott Industries, Inc. (Abbott). Having reviewed Puccini's arguments in light of the trial record and the applicable legal principles, we affirm.

I.

We first review the terms of the parties' lease that underlies Puccini's constructive eviction claim. Puccini and Abbott entered into a lease dated October 15, 2009. The parties amended the lease by addendum later that year.[1] The lease governed seven designated sections or "parcels" of premises at 1-11 Morris Street and 241 Grand Street in Paterson. The lease authorized Puccini to take possession of the parcels at different times. Together, the seven parcels constituted the whole property.

Puccini leased Parcel One commencing October 15, 2009. The parcel consisted of a 2500 square foot "seafood processing area, " a freezer container, plus a 400 square foot access area. Puccini paid a two-month security deposit and one-half of a month's rent.

Parcel Two consisted of another 2500 square feet on the second floor, to be used as a "cigar wholesale/retail establishment." The term commenced November 1. The first sixty days were rent-free. The first month's rent was due January 1, 2010. Puccini paid a two-month security deposit.

Parcel Three was denominated the "skylight area, " and consisted of 4000 square feet. The lease term for this parcel began January 1, 2010. Abbott agreed to "remove[] everything in the room, 5 days prior to the commencement of the lease, except the fixtures on the walls and ceiling which will be removed by the tenant (which he may start to remove and install partitions at any time)." The first month was rent-free, and a two-month security deposit was due upon execution of the lease addendum.

Parcel Four included a "'machine room' and the employee lounge" occupying 1241 square feet, with a start date of January 1, 2010. According to trial evidence, Parcel Four also included an employee bathroom. The first month was rent-free, and a two-month security deposit was due upon execution of the lease addendum.

A 2500 square foot retail area fronting Grand Street was denominated Parcel Five. The lease for this section started January 1, 2010. A two-month security deposit was required. Plaintiff was to have "immediate access" to the area to prepare it for retail sales and install various items.

Parcel Six consisted of a 390 square foot "refrigerated box and adjoining compressors" next to a restroom. The lease for the sixth parcel began October 15, 2009. A two-month security deposit was required. The lease stated that plaintiff was required to remove the "lobster tanks" by December 2009. However, the evidence at trial was that the lobster tanks measuring 800 square feet, were actually located in Parcel Seven, which consisted of a warehouse area.

The lease stated that Parcel Seven included the "remainder of the premises" which, under the original lease, Puccini was to lease by April 1, 2010. The addendum allowed Puccini to lease portions of the remainder upon fourteen days' notice, but not later than six months after the date of the agreement. The addendum stated, "Tenant will be responsible for 19, 200 square feet (the entire building) which the landlord agrees to vacant [sic]."

The lease provided that plaintiff had an option, for a term of three years, to purchase the entire premises for $850, 000. The option was granted in consideration of a "good faith deposit" of $20, 000 due January 31, 2010. However, if Puccini violated the lease in any manner, ...


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