EVAN BLUM v. NEW WEST URBAN RENEWAL, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5304-04T25304-04T2

EVAN BLUM,

Plaintiff-Appellant,

v.

NEW WEST URBAN RENEWAL, INC.,

Defendant-Respondent.

______________________________________________

 

Submitted May 24, 2 006 Decided June 28, 2006-

Before Judges Weissbard and Sapp-Peterson.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Docket No. L-4109-02.

Zatuchni & Associates, attorneys for

appellant (David Zatuchni, on the brief).

O'Brien Thornton, attorneys for respondent

(Merrill M. O'Brien, on the brief).

PER CURIAM

Plaintiff Evan Blum appeals from a judgment in the amount of $73,382.35 entered on a jury verdict in favor of defendant New West Urban Renewal, Inc. (NWUR), representing unpaid rent. We affirm.

The matter arises out of plaintiff's June 1, 1993 five-year lease of warehouse space in Newark. Although the record is unclear as to the exact date, at some point plaintiff stopped paying rent based on what he alleged to be defects in the building. A lengthy and convoluted series of tenancy actions began with defendant's suit for possession filed sometime in early 1994. Eviction was ordered but stayed; a settlement was reached but eviction was again thereafter ordered. We rejected plaintiff's appeal of the eviction in an opinion filed May 28, 1997.

Although there was another action filed by NWUR against Blum in August 1997, we omit the details since it has no bearing on this appeal. The present case arises from a complaint filed by Blum against NWUR on May 25, 2002. In that action, plaintiff alleged a breach of implied contract (count one), fraud in the inducement of the 1993 lease (count two), and illegal bailment (count three). In its answer, filed on September 10, 2002, NWUR asserted, in part, that Blum's claims were barred by the outcome of the 1994 eviction action, which, as noted, we affirmed on May 28, 1997. NWUR counterclaimed against Blum alleging that he had engaged in a pattern of racketeering activity, in violation of N.J.S.A. 2C:41-2c (RICO). The counterclaim also sought a judgment for unpaid rent.

On February 6, 2004, NWUR's motion for summary judgment on his counterclaim was granted as to the RICO allegation (count one) but denied as to the unpaid rent claim (count two). NWUR then moved for summary judgment determining the rent due. That motion addressed Blum's argument that undisclosed environmental contamination in the basement of the building in which he leased space provided a defense to the unpaid rent claim. In support of his claim, Blum pointed to NWUR's February 2001 suit in the United States District Court against the former owner of the subject property for damages resulting from environmental contamination of the site. The record before us does not provide further information concerning the suit, in particular its outcome. In its motion for summary judgment, NWUR argued that the alleged contamination did not impair its ability to lease the property after Blum was evicted, arguing that the only impediment to leasing - in order to mitigate Blum's liability - was Blum's failure to remove "voluminous artifacts" stored in connection with his business.

On March 10, 2005, after hearing argument, Judge Schott granted NWUR's motion in part, striking plaintiff's defense "that monthly rent should be offset by reason of any environmental contamination on the property." Her order also struck "any defense to payment of rent based upon the physical condition of the premises (e.g. water leaks, broken windows)." Finally, she denied summary judgment seeking a determination that plaintiff owed the monthly rent "for the approximate two-year period preceding expiration of the lease." As a result, trial to determine the amount of unpaid rent was held before Judge Lombardi and a jury from March 14 to 16, 2005. At the outset of the trial, Judge Lombardi rejected plaintiff's request that he reconsider Judge Schott's ruling. After listening to the tape of Judge Schott's decision, Judge Lombardi held that it constituted the law of the case, and he would not "revisit it." He therefore barred plaintiff from introducing evidence, in mitigation, that the leased property was contaminated. Nevertheless, the jury's award of $56,250 in favor of NWUR was substantially less than the amount it claimed. With interest, the total payment came to $73,382.35.

On appeal Blum argues that both Judge Schott and Judge Lombardi (in adhering to Judge Schott's pre-trial ruling) erred in precluding him from presenting in defense evidence of environmental contamination known to NWUR since before the inception of his tenancy, because the evidence was relevant to his mitigation defense. In entering her preclusion order, Judge Schott reasoned as follows:

But more importantly, with regard to the environmental claims, it's clear no experts have been named by the tenant. And it's beyond the Court's comprehension how the tenant could ever show [that] the presence of PCBs affected the value of the leasehold when there's not going to be anybody to explain to the jury what the -- what PCBs are, what they do, who they disperse or don't disperse; how they may or may not have had any effect on this lease that was essentially a lease for storage space. This wasn't a retail operation. This wasn't a lot of people coming in and out or members of the general public. It was essentially a -- a storage, a warehousing lease. Where albeit it, the tenant, Mr. Blum, and perhaps some others involved in his business were in and out.

But, to merely say there were environmental PCBs -- environmental problems existing because PCBs were found on the premises, that standing alone with the trial three days away, is nothing more than a bare allegation. It is an allegation that it affected the leasehold not supported by any proof that has been provided to the Court in the context or in opposition to the landlord's motion for summary judgment. There's no experts [sic] reports. There's -- there's not even any detailed explanation by anyone where they were, what they did, how it could have influenced the value in any way.

And so, partial summary judgment, at least as to that defense, a defense that the environmental -- that the existence of PCB somewhere in the building affected the leasehold on that defense, partial summary judgment will be granted.

 
We agree, and affirm substantially for the reasons expressed by Judge Schott in her February 7, 2005 oral decision.

Affirmed.

(continued)

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A-5304-04T2

June 28, 2006