• Copy the reference
  • Tutorial video

    Final Award of the Arbitrator

    [1].
    I, Liana Colón Valentín, THE UNDERSIGNED ARBITRATOR, having been designated in accordance with the arbitration agreement entered into by the parties (Claimant represented by Law Offices of W Mark Wilcynski, PC; Respondent represented by Ravinder S. Nagi) by virtue of a commercial lease agreement signed in counterparts on February 27 and March 14, 2018, and having been duly sworn and having duly heard the proofs and allegations of the parties hereby, Find, as follows:

    1. Benito's Burrito's, LLC (hereafter Benito's or Claimant), filed a demand for arbitration against Caribbean Off the Grid Plaza, LLC (hereafter Caribbean or Respondent), for damages resulting from breach of a commercial lease agreement and multiple torts.

    2. Benito's claimed that Caribbean breached the commercial lease agreement by allowing construction activities that resulted in unreasonable interference with Benito's permitted use of the leased premises and impairment of the visibility of the premises.

    3. The evidence presented established that construction activities in the commercial center were ongoing since the contractual relationship began. The evidence also established that construction activities caused nuisances such as noise, dust, and loss of use of public area tables and loss of parking space.

    4. The evidence also established that an ADA ramp that was located in front of the leased premises was removed.

    5. While the impact of construction activities could have been better managed, there was insufficient evidence to establish a relationship between the construction activities and the damages claimed by Benito's. The evidence presented by Claimant was speculative. Moreover, Claimant's CFO testified that she estimated 10% to 15% of the business loss was due to the COVID pandemic.

    6. As to the ADA ramp, Respondent acted within its contractual rights when it removed the ramp.

    7. The evidence did not support a claim of breach of quiet enjoyment, either.

    8. Even if Claimant could establish a relationship between the construction activities and the damages it claimed, which it did not, there was insufficient evidence to make a determination as to loss of profits. The Claimant presented monthly and yearly sales reports, but no evidence on expenses so as to make a determination of profits or loss of profits. Moreover, there were discrepancies in sales between the yearly and monthly reports that could not be explained by Claimant's CFO even after consulting with Claimant's co-owner and their counsel.

    9. The other document provided by the Claimant on which it relied heavily to summarize its claimed damages was identification number 110 Total Stats for Loss of Business. The damages detailed in this document consisted of, a decrease in sales, identified as a Business Loss for years 2020 and 2021; rent since February 2018 up to December 2021; CAM fees between February 2018 and October 2021; loading dock removal and parking space removal; and food cost loss.

    10. A decrease in sales does not necessarily mean less profits. Failure by Benito's to provide evidence of expenses left the arbitrator unable to calculate or grant any remedy because of lost profits. In addition and as stated before, the sales evidence was unreliable because of the unexplained differences between monthly and yearly sales reports.

    11. Rent and CAM fees are not recoverable by the Claimant since it in fact occupied and operated various businesses from the leased premises for all pertinent time.

    12. The evidence presented for the loading dock removal and parking space removal was speculative, as admitted by Claimant's CFO. She stated that she initially estimated damages related to delivery difficulties because of the removal of the ADA ramp and lack of parking availability in the amount of $250 per day without stating any basis supported by accepted economic, financial, or accounting principles. She later decided to lower the amount claimed to $1,000 because she thought $250 a day was too much. This shows the speculative nature of this claim.

    13. Finally, as to food cost losses, while Benito's CFO testified records were kept, they were not provided and the numbers provided by the CFO were speculative.

    14. No further credible evidence was presented to support a relationship between the actions or dudes of the Respondent and damages claimed by Benito's or to support a reasonable estimation of loss of profits.

    [2].
    Accordingly, I AWARD for the Respondent as follows:

    1. Claimant shall pay the Respondent $56,047.64 as reasonable attorneys' fees and costs pursuant to article 37.7 of their commercial lease agreement.

    2. The administrative fees of the American Arbitration Association (the Association) totaling $5,900.00 shall be borne by the Claimant.

    3. The compensation of the arbitrator totaling $8,350.00 and expenses for $863.13 shall also be borne by the Claimant. Therefore, Claimant shall pay to Respondent the sum of $4,606.56 representing that portion of Respondent’s share of arbitrator's compensation previously paid to the Association.

    [3].
    This AWARD is in full settlement of all claims submitted to this Arbitration.
    [4].
    I, Liana Colón Valentín, do hereby affirm upon my oath as Arbitrator that I am the individual described in and who executed this instrument which is my Award.

    Date 3 August 2022

    Subsequent citations of this document as a whole:
    Subsequent citations of this excerpt:
    Click on the text to select an element Click elsewhere to unselect an element
    Select a key word :
    1 /

    Instantly access the most relevant case law, treaties and doctrine.

    Start your Free Trial

    Already registered ?