BHUPEN PATEL v. SHALIN FOOD, INC

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0478-17T4

BHUPEN PATEL and
SHAILI MANAGEMENT CO.,

          Plaintiffs-Appellants,

v.

SHALIN FOOD, INC.,

     Defendant-Respondent.
___________________________

                    Submitted December 19, 2018 – Decided January 16, 2019

                    Before Judges Nugent and Reisner.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Monmouth County, Docket No. L-1309-16.

                    Howard R. Rabin, attorney for appellants.

                    Gordon & Rees, LLP, attorneys for respondent (Mark
                    A. Trokan, on the brief).

PER CURIAM

          In this commercial landlord-tenant dispute, plaintiffs Bhupen Patel and

Shaili Management Co. (Shaili) appeal from an August 18, 2017 order granting
summary judgment to defendant Shalin Food, Inc. Our review of the trial court

order is de novo, using the Brill standard. Templo Fuente De Vida Corp. v. Nat'l

Union Fire Ins. Co. of Pittsburgh,  224 N.J. 189, 199 (2016); Brill v. Guardian

Life Ins. Co. of Am.,  142 N.J. 520, 540-41 (1995). After considering the record

in light of that standard, we conclude that the case was ripe for summary

judgment, and defendant was entitled to judgment as a matter of law. We affirm

for the reasons cogently stated by Judge Joseph P. Quinn in his comprehensive

written opinion issued with the order. We add the following brief comments.

      Pursuant to a lease that Patel drafted, defendant tenant operated "a back

office operations kitchen for several Dunkin Donuts stores." Pursuant to the

lease, the tenancy commenced on "the first day of operation" following the

completion of construction work on the premises. By law, the kitchen could not

begin operating until a certificate of occupancy (CO) was issued. See  N.J.S.A.

52:27D-133. The CO was issued on October 4, 2000, an undisputed material

fact that no amount of discovery could change. The lease by its terms ran for

five years, with three five-year renewal periods. Defendant gave plaintiffs

written notice of non-renewal on September 16, 2015. The non-renewal notice

was timely, because the third renewal period began October 4, 2015.




                                                                        A-0478-17T4
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Nonetheless, plaintiffs wrongfully failed to return defendant's $9000 security

deposit.

      On those undisputed facts, Judge Quinn correctly dismissed plaintiffs'

claim for unpaid rent and awarded defendant $9000 for the security deposit.

      Affirmed.




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