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401 Commercial L.P. v. Jog, LLC

Other Lower Courts

February 11, 2008

401 Commercial L.P., Petitioner/Landlord,
v.
JOG, LLC d/b/a Joe O's, Respondent/Tenant, and "XYZ Corp." Respondent-Undertenant.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

Plaintiff represented by: Cyruli Shanks & Zizmor LLP by Marc J. Schneider, Esq.

Defendant represented by: Roberts and Roberts by Michael J. Roberts, Esq.

OPINION

Shlomo S. Hagler, J.

Introduction

Courts are often called upon to determine the respective legal and equitable interests of the parties. Particularly poignant is the balancing of equities between the landlord's right to timely payment of rent and the tenant's severe prejudice in possibly forfeiting a negotiated reimbursement sum and the cost of substantial improvements that the tenant made to the premises. Under the circumstances presented below, this Court finds that the tenant's legal and equitable interests clearly outweigh the landlord's legal entitlement of timely payment of rent under the extant stipulation.

Relief Requested

Respondent JOG, LLC (d/b/a Joe O's) ("respondent" or "Joe O's") moved by Order to Show Cause to vacate and set aside the notice of default dated October 16, 2007 and to stay the enforcement and execution of the warrant of eviction. Petitioner 401 Commercial L.P. ("petitioner" or "401 Commercial") opposes the motion.

Issues

On the return date of the motion, this Court set this matter down for a hearing on January 24, 2008 to determine the following two issues:

(1) Can the respondent show "good cause" to offer a valid excuse for its alleged failure to tender payments under the parties stipulation dated August 22, 2007 ("Stipulation") (Exhibit "B" to the Motion), and to ultimately continue the stay of enforcement of the warrant of eviction upon the payments conditioned thereon; and

(2) What is the amount that is currently due under the terms of the Stipulation. [1]

Hearing/Witnesses

The hearing was conducted on January 24, 2008. Respondent called three witnesses: Larrica M. Porter ("Ms. Porter"), a secretary employed by Giaimo Associates, LLP; Cintra Garcia ("Ms. Garcia"), a paralegal and office manager of Giaimo Associates, LLP and bookkeeper for Joe O's; and Joseph O. Giaimo, Esq. ("Mr. Giaimo"), a partner in the firm of Giaimo Associates, LLP, the designated attorney for the respondent and the sole principal of Joe O's, which bears his name. Petitioner did not call any ...


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