October 19, 1999
Appeal of
J. LEONARD SPODEK
NATIONWIDE POSTAL MANAGEMENT
LEASE AGREEMENT
(Ault, CO MPO)
PSBCA No. 4209
APPEARANCE FOR APPELLANT:
J. Leonard Spodek
APPEARANCE FOR RESPONDENT:
Gary Shapiro, Esq.
OPINION OF THE BOARD ON MOTION FOR SUMMARY JUDGMENT
Appellant, J. Leonard Spodek, d/b/a Colorado Postal Holdings, has appealed from a contracting officer's final decision withholding $716.79 from rent otherwise due Appellant under a lease agreement with Respondent, United States Postal Service. Respondent filed a Motion for Summary Judgment in which it alleges there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Appellant opposes the Motion. For the purpose of deciding this Motion, the following findings of fact are made.
FINDINGS OF FACT
1. On August 27, 1996, Appellant leased a one-story building and the surrounding property at First Avenue and Second Street, Ault, CO 80610-9998 to the United States Postal Service for use as the Ault Main Post Office (“Ault MPO”). The lease was for a five-year period beginning on May 15, 1996, and ending on May 14, 2001, and provided for an annual rent of $11,723.00 payable in equal installments at the end of each calendar month. (Appeal File (AF) Tab 9).
2. Under the Maintenance Rider-Lessor Responsibility provision (Aug. 1992) (“Maintenance Rider”), the Lessor (Appellant) is required to maintain the premises "including the building and any and all equipment, fixtures, and appurtenances, whether severable or non-severable, furnished by the Lessor under this Lease, in good repair and tenantable condition." However, Appellant is not responsible for damage resulting from the negligence of Postal Service agents or employees. (Id.)
3. The Maintenance Rider also provides that if, after sufficient written notice, the Lessor fails to fulfill his maintenance obligation within the time specified in the written notice, “the Postal Service shall have the right to perform the work by contract or otherwise and withhold the cost thereof (which may include administrative cost and/or interest) from payments due or to become due under this Lease." (Id.)
4. In January 1998, a toilet and lavatory basin at the Ault MPO required replacement. Nothing done by the Postal Service or its contractors contributed in
any way to the need for repair or replacement of either the toilet or lavatory basin. (Admissions 1, 2, 3 and 4).[1]
5. On January 14, 1998, the contracting officer notified Appellant in writing that the necessary replacement of the toilet and lavatory basin was not due to Respondent’s negligence, and that Appellant was responsible for replacement of these fixtures under the Maintenance Rider (AF Tab 5). Appellant was given 30 days from receipt of the letter in which to have the work performed or the Postal Service would hire a third-party contractor and deduct the costs plus administrative fees from the rent (id.).
6. Appellant did not respond to the January 14, 1998 notice sent by the contracting officer or take any action to repair or replace the toilet or lavatory basin (Admissions 8, 9 and 10).
7. On March 4, 1998, the Postal Service retained a third-party contractor to make the necessary repairs to the toilet and lavatory basin (AF Tab 2).
8. The costs charged to the Postal Service for parts and labor for replacement of the toilet and lavatory basin at the Ault MPO totaled $516.79 (id.). The repair costs were reasonable (Admissions 5 and 6).
9. On April 13, 1998, the contracting officer issued a final decision, which found Appellant responsible under the Maintenance Rider for plumbing repair costs of $516.79 and $100.00 in administrative costs. The contracting officer advised Appellant he could reimburse the Postal Service by mailing a check to the contracting office by April 27, 1998, or the costs, plus interest and an additional $100.00 in administrative costs, would be withheld from rent due Appellant. (Id.)
The administrative costs charged in the contracting officer’s final decision were reasonable in amount (Admission 7).
10. By letter dated May 22, 1998, Appellant filed a timely appeal of the contracting officer's final decision (AF Tab 1).
DECISION
Respondent argues that as a result of sanctions imposed by the Board
there are no genuine issues of material fact. Appellant contends in his response to the Motion for Summary Judgment that genuine issues of material fact still exist because his position remains that the repairs were unnecessary and were done at an unreasonable cost.
We agree with Respondent that there are no genuine issues of material fact. The evidence establishes that the bathroom fixtures at the Ault MPO needed to be replaced in January 1998, and the required replacement was not due to the fault or negligence of Postal Service agents or employees (FOF 4). Although Respondent notified Appellant the work was needed, Appellant did not have the work performed (FOF 5, 6). Respondent had the fixtures replaced by a third party contractor and the amount charged for this work was reasonable (FOF 7, 8). Since under the Maintenance Rider Appellant was responsible for all maintenance and repairs at the Ault MPO (FOF 2, 3),[2] Appellant is liable for the fixture replacement costs incurred by Respondent.
The undisputed facts[3] establish that Appellant has failed to fulfill his obligation under the Maintenance Rider and that Respondent is entitled to recover its costs as a matter of law. Accordingly, Respondent’s Motion for Summary Judgment is granted and the appeal is denied.
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman
I concur:
Norman D. Menegat
Administrative Judge
Board Member
[1] After Appellant failed to comply with the Board’s orders to respond to Respondent’s discovery requests, Respondent’s requests for admissions were deemed admitted. See Orders, J. Leonard Spodek, PSBCA No. 4209, dated July 29, 1998, October 13, 1998 and November 9, 1998.
[2] See Nationwide Postal Management, PSBCA No. 3989, 97-2 BCA ¶29,267; Massapequa Partners Limited Partnership MPL Group, Inc., PSBCA No. 3817, 97-2 BCA ¶29,058; Poelstra Properties, PSBCA No. 3109, 92-3 BCA ¶25,090.
[3] Summary judgment may be granted only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987); Rood Trucking Co., Inc., PSBCA Nos. 3121, 3132, 93-2 BCA ¶25,564; On Time Postal Services, Inc., PSBCA No. 2528, 90-2 BCA ¶22,698.