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Pavilion Fights Back: Reverse Lease Decision Or Be Sued

Owners of Avon Pavilion did not cause Hurricane Sandy, attorney says

The Borough of Avon apparently thinks that Robert Fishman, the owner of the Avon Pavilion, single-handedly caused Hurricane Sandy, his attorney says.

In a strongly worded letter to Avon Borough officials, Wall Township-based attorney Dennis A. Collins said there is no other reason to terminate the restaurant’s lease, because the agreement between the borough and Fishman says it is the town’s responsibility to rebuild the restaurant if it is destroyed by an act of nature.

The lease, a copy of which was obtained by Wall Patch, says that if the Pavilion is “damaged or destroyed by the elements, fire, acts of God, the ‘Landlord’ will repair the premises returning same to the current condition” within a reasonable timeframe. Conversely, it says that if the restaurant is destroyed or damaged by an act of the tenant, the borough can terminate the agreement and walk away without obligation.

“The only explanation for the decision to terminate (the Pavilion’s lease) is that you believe my client caused Superstorm Sandy,” Collins said in his letter, dated Jan. 29. “Clearly this is absurd.”

There is a state law -- N.J.S.A. 46:8-7 – that says a lease agreement can be severed if leased property is destroyed. But that law also says it does not apply if there is a lease that says otherwise, according to the statute.

“Fortunately, the Borough of Avon prepared a lease agreement that dealt with the destruction of the premises,” Collins said in his letter.

Collins says he and Fishman will begin the process of suing the borough within 14 days if the matter is not resolved.

It was not immediately known if the borough intended to stand by its decision. A call to Barry A. Cooke, borough attorney, was not immediately returned.

Collins in a telephone interview Friday said he hoped it the matter could be resolved without involving the courts.

“We hope that fair-minded people read the this the way it was intended, because no one can conclude that it justifies the termination of the lease,” Collins said.

jerseyswamps February 01, 2013 at 08:16 PM
Avon officials, You guys looking to be the poster boys for sleazy politicians cashing in on Sandy? You got it locked.
bayboat February 02, 2013 at 12:18 AM
"Lease? We don't need no stinkin' LEASE!" Real classy Avon.
Belmarchick February 02, 2013 at 02:17 AM
Apparently the mayor of Avon does not want to be re-elected. No words...
Ralebird February 02, 2013 at 02:43 AM
Let's see...how many years left on the lease...times revenues for those years...plus punitive damages...equals...a windfall for the operator and a tax hike for the good people of Avon. Oh yeah, don't forget the legal fees...for BOTH sides, taxes will pay for them, too.
Guntoter66 February 02, 2013 at 01:05 PM
Though I don't live in Avon, my Wife & Family have spent many enjoyable mornings having breakfast at the Avon Pavilion. Why the town has made that decision is beyond me. However, trust that if the A.P. doesn't open because of their vote, trust that I will cease spending any money in Avon-by the-Sea.
J February 02, 2013 at 01:48 PM
So, ralebird, what would you have the tenant do--just meekly walk away from his business and livelihood, although he appears to be in the right here? If you are an Avon resident and want to blame someone for this fiasco, the available facts point to the Avon Board. Remember that next Election Day.
Ralebird February 02, 2013 at 04:46 PM
Odd that you would read that as a slap at the operator rather than the buffoons holding the purse strings.
J February 02, 2013 at 10:19 PM
Odd that you actually took a slap at the operator by calling his losses a "windfall." Based on what we know so far, the fault lies entirely with the governing body.
Ralebird February 03, 2013 at 04:43 AM
I give up.
Barney February 04, 2013 at 05:48 PM
I guess you can look at it this way. Of the two who made the decision, one guy works for the NJ school system and another works for NJ transit. so there is a wealth of business knowledge there! Those are two well run organizations now aren’t they!
Bluto February 04, 2013 at 06:08 PM
This is personal, it has nothing to do with what the lease says or what the impact to the town would be. If I were Fishman I would sue the Mayor and the Board personally and see how they like it.
OldCoolBlues February 05, 2013 at 02:56 AM
One has a public pension of $104,000/yr, over $25,000/yr in soc sec & makes over $600/day to babysit the Manasquan school system...yet he begrudges a businessman making an honest living!
jerseyswamps February 05, 2013 at 09:57 AM
Today's APP, 2/5, has an article. Avon says the lease was illegal. Perhaps there is a little truth to what "Avon4lyfe" was alleging? BTW, Patch, what happen to his posts? Totally erased by you. That's odd. I see many posts here that should be yanked but you let them stay.
Nancy, Old Bridge February 05, 2013 at 01:54 PM
Who was the "brillant" person who decided these two buildings were not fixable, and why? They saved their water front headquarters! Rob is right one can smell more than a fish here. The one building had all new windows and a new roof, What a shame! I think McGovern"s the only one with a brain among the three of them:
Dame Bridgid February 05, 2013 at 03:23 PM
The town of Avon signed a legal binding agreement that was not superseded by the new statute. That new law even contained a clause acknowledging leases specifying that the town WILL rebuild in case of natural disaster would continue to be binding. That law simply does not not change the fact that the lease is legal, no matter how it is interpreted by Avon's board. Losing this case in court will have an effect for years to come. Higher taxes, & loss of business revenues at a time when Avon is attempting to rebuild. Plus a negative reputation that will cling to the town for a long time. Their actions truly do not appear to be a winning strategy in my opinion.
Dame Bridgid February 05, 2013 at 03:54 PM
If my grandmother were alive, she would be saying, only one of them thinking clearly means the board's ratio of wits has dropped below half, to 33%. I will try to be more charitable instead, by hoping the gentlemen in question were simply less than alert. Maybe they will wake up in time to save the town the expensive lawsuit that will result if the board fails to honor Avon's agreement.
jerseyswamps February 05, 2013 at 06:54 PM
Oh, well, if the contract is legal then we can do away with all CONTRACT LAW attorneys and lay off a bunch of judges. There are all kinds of ways to challenge and void leases. Many of the reasons are good, logical reasons. This is why we have lawyers and courts. I would expect, demand, my elected officials challenge any agreement that was not in the best interest of the town. What kind of deal was it that requires the town to rebuild HIS business to His building plans? 25 year lease? Whatever he pays it should at least be in the ballpark of fair market value. If there was an oil spill off our coast and the whole jersey shore shut down for a few years you bet he wouldn't want to honor his lease. The courts would decide.
Dembones February 05, 2013 at 07:34 PM
Bigotry is alive and well in the Boro of Avon. Mayor Archie Bunker and his sidekick have been looking to out Mr Fishman and his crew for some time. I guess they feel now is as good a time as any to do so. This has nothing to do with a superstorm. Only super hatred.
florence ray February 05, 2013 at 11:12 PM
i tried to leave a comment and it was deleted i guess the politicians did not like what i said BRING BACK THE FISHMAN FAMILY AND THE AVON PAVILLION DONT U PEOPLE HAVE A CONSCIENCE look at the jobs that were lost all the kids going to college trying to make a living in the summer

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