STUDIO 45 DISCOTHEQUE INC v. CELIA ORLANDO REALTY CORP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4326-10T3

STUDIO 45 DISCOTHEQUE, INC.,

Plaintiff-Appellant,

v.

CELIA ORLANDO REALTY CORP.,

Defendant-Respondent.

__________________________________

April 4, 2012

Submitted March 19, 2012 - Decided

Before Judges Grall and Skillman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No.

L-843-09.

Tomas Espinosa, attorney for appellant.

Ledesma, Diaz, Lopez & Noris, attorneys for respondent (Adolfo L. Lopez, on the brief).

PER CURIAM

In 1996, plaintiff entered into a five-year lease from defendant of premises in Union City used for a nightclub at a fixed rent of $3500 plus a percentage of any increase in the real estate taxes assessed against the land and improvements of which the demised premises are a part.1 When the lease was entered into, Francisco Romero owned plaintiff. In 1998, Romero sold plaintiff to Eduardo Gonzalez. As part of this transaction, the lease was assigned to Gonzalez. The lease was apparently renewed under the same terms subsequent to the assignment.

At some point, plaintiff ceased operations on the premises and was evicted in a summary dispossession action. Thereafter, plaintiff brought this action for money damages, claiming that defendant had overcharged for rent for the entire ten-year period of its occupancy of the premises; specifically, plaintiff asserted that defendant had improperly charged it for 25% of the increase in real estate taxes since the base year of 1981 on the entire property of which the demised premises were a part rather than 25% of solely the portion of increased taxes allocable to the demised premises.2

The resolution of this dispute turns on the interpretation of two sections of the lease. The first, section 1.03(b), states in pertinent part:

If in any calendar year during the term and of any renewal or extension of the term thereof, the annual municipal taxes assessed against the land and improvements leased hereunder or of which the premises herein leased are a part, shall be greater than the municipal taxes assessed against the said lands and improvements for the calendar year 1981, which is hereby designated as the base year, then, in addition to the rent herein fixed, the Tenant agrees to pay a sum equal to TWENTY FIVE (25%) PERCENT, of the amount by which said tax exceed[s] the annual tax for the base year, inclusive of any increase during any such calendar year.

[Emphasis added.]

The second, section 26.01, states in pertinent part:

The Tenant agrees to pay as additional rent 25% of any increase in taxes over the base year of 1981 covering the entire premises of which the demised premises are a part as well as any increase or additional assessment made and charged on the entire premises by the City of Union [C]ity, [N]ew [J]ersey.

[Emphasis added.]

The case was brought before the trial court by defendant's motion for summary judgment. Neither party presented any extrinsic evidence relevant to the disputed sections of the lease.

The court granted defendant's motion, stating at the bottom of the summary judgment order:

The real estate tax provisions of the case are clear and unambiguous; their meaning therefore presents an issue of law, not fact. The real estate taxes required to be paid by the tenant are 25% of the increase for the entire property, as argued by defendant, not 25% of that portion of the property occupied by Studio 45, as argued by plaintiff. Moreover, there is no evidence that Studio 45 was ever charged for real estate taxes for any other property, either before or after it was bought by Mr. Gonzalez.

Accordingly, the court dismissed plaintiff's complaint.

On appeal, plaintiff presents the following arguments:

POINT I:

THE LEASE LANGUAGE IS AMBIG[U]OUS AND SHOULD BE CONSTRUED AGAINST [RESPONDENT] CELIA ORLANDO REALTY CORP. BECAUSE IT WAS DRAFTED BY [RESPONDENT'S] ATTORNEY AND THE COURT SHOULD FIND FOR THE APPELLANT.

POINT II:

THERE ARE GENUINE ISSUES OF MATERIAL FACTS IN DISPUTE AND THEREFORE THE [RESPONDENT] CELIA ORLANDO REALTY CORP.'S [] THAT MERITS REMAND OF THE CASE.

We reject these arguments and affirm the summary judgment in defendant's favor substantially for the reasons set forth in the trial court's statement of reasons. Plaintiff's arguments do not warrant any additional discussion. R. 2:11-3(e)(1)(E).

Affirmed.

1 There apparently had been prior similar leases, commencing in 1981.

2 There were various other claims between the parties, including for nonpayment of rent, which were consolidated with this action. The court's resolution of those claims is not involved in this appeal.