Pavilion Fights Back: Reverse Lease Decision Or Be Sued

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.