Facts

Plaintiff Martel Toler entered into a lease agreement with Troy Bartz on Nov. 1, 2006. Under the terms of the agreement, the initial lease term was for 10 years, followed by two five-year options. The express intended use of the premises was for the operation of the Paradise Lounge, a for-profit entertainment establishment which would host special events and provide music, food, and beverages.

On Dec. 1, 2006, Bartz signed a promissory note agreeing to pay Toler $75,000 in the event Bartz was unable to deliver the premises.

Purportedly, Bartz defaulted on payments to his creditors,defendants Simon Aviel and Morry and Raymond Oretsky. On April 20, 2007, as a result, the property was transferred to Aviel and to the Morry Oretsky Trust, U/A dated July 18, 1989, following a trustee's sale. The Oretskys were the trustees of the Trust.

Toler filed suit against defendants after, he claimed, they had refused him entry to the premises since March 2007. Toler claimed breach of contract, negligence, conversion, and wrongful recovery of possession.

The Oretskys settled for $45,000 prior to trial. The case proceeded to trial solely against Aviel.

PLAINTIFF'S CONTENTIONS:
Toler contended that he agreed to continue the lease under a new landlord if Bartz sold the property. Toler contended that Aviel and the Oretskys were aware of and received a copy of the lease and, in fact, accepted $86,000 directly from Toler, all prior to the sale. Toler contended that, as a result, Aviel and the Oretskys took the property subject to the lease.

Damages

Toler sought to recover lost income and possession still remaining on the premises.

Result

The jury found in favor of Toler and awarded $160,000 in lost income and $60,000 in property damage. The jury also found that Aviel acted with oppression, fraud, or malice, and the parties stipulated to $70,000 in punitive damages. When the court later granted Toler's motion for treble damages, Toler elected to accept the treble damage award of $660,000 over the jury's punitive damage award. The court also awarded Toler $11,774 in costs and $10,940 in prejudgment interest. The total award was then reduced by $45,000, to account for the Oretskys settlement. The final award was for $637,217, solely against Aviel.

Other Information

Simon David Aviel, in pro per. FILING DATE: Sept. 17, 2007.