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Judge orders Perth adult business evicted

Attorney for Fantasy Island owner plans to appeal

June 13, 2008
By MICHAEL ANICH, The Leader-Herald
JOHNSTOWN — Fantasy Island owner Frederick H. Leonardi was ordered evicted from his Perth adult novelties store in a civil case Thursday before acting state Supreme Court Justice Polly A. Hoye.

His attorney — David Brickman of Albany — indicated in court he will appeal.

The person trying to evict Leonardi — his landlord, Mary Pawlus of Fort Pierce, Fla. — said today she’s not satisfied by Thursday’s decision. Pawlus is the owner of the Route 30 building which rents to Unique Medium, the company that operates Fantasy Island.

“This is like the fourth or fifth time,” Pawlus said this morning. “They keep appealing ... It’s [the civil battle] been over a year. It’s very frustrating. We want him out.”

She said her lawyer — John Sutton of Galway — told her Thursday night he plans to file paperwork in the next two days with Hoye that may expedite the eviction. Pawlus said Sutton indicated that after the paperwork in filed, a warrant for Leonardi’s eviction will be served, and he’ll have three days to leave.

Outside the Fulton County Courthouse, Leonardi called the judge’s ruling “ridiculous.”

Leonardi and his attorney refused further comment outside the courthouse. It was unclear what immediate effect the ruling would have on the business, which is still open.

Fantasy Island has been a tenant of the building the past six years, and Leonardi had been paying Pawlus $1,110 per month in rent.

The Supreme Court conducted a roughly 45-minute hearing Thursday to determine if Leonardi had formally paid his rent and whether he had a right to stay at the premises with no written documentation to extend his lease.

There was one witness called during the hearing. Leonardi called Sutton. Pawlus’ lawyer contended Leonardi still owed his client $12,000 in back rent, but for Thursday’s hearing, the attorney withdrew his request for the money in favor of what he said was his interest in “termination of the lease.”

The main part of the case was that Sutton contended Leonardi’s “undertaking” payment of $11,500 to the Perth Town Court last fall didn’t constitute a formal written extension of his lease, and he didn’t properly notify Pawlus of intentions to stay in the building.

The undertaking allowed Leonardi to stay several months beyond last fall.

Hoye ruled there was a lease agreement between Pawlus and Leonardi originally from November 2002 to November 2005, with a written extension from November 2005 to November 2007.

The judge said she reviewed the agreement and found the tenant was required to notify Pawlus in writing if he wanted to continue the lease past October, which he didn’t do. She also said Leonardi should have continued to pay rent if that was the case.

Under cross examination by Brickman, Leonardi told the court he hasn’t paid rent since April 2007 because Pawlus failed to maintain the building.

“We couldn’t get anything in the building taken care of,” the Fantasy Island owner said.

Leonardi said the furnace had a major problem and blew in spring 2007.

“We had [another] problem seven to eight months previous to that date,” he said.

Leonardi said that during winter months, he had to heat the place with space heaters so pipes wouldn’t burst.

He also said Pawlus had all his merchandise and computers, security system and safe containing $3,000 to $3,500 removed in a previous attempt at eviction.

He said he still hasn’t seen his property, some of which is in the possession of the Fulton County Sheriff’s Department.

Hoye ruled Pawlus had no intention to grant Leonardi the status of a “holdover tenant” past October. She also stated, “An undertaking is not the equivalent of rent,” and the payment was posted with the court and not the landlord.

“There has not been any payment of rent” since the lease expired, Hoye said.

Brickman had argued that Section 232 of the state Real Property Law requires 30 days’ notice before starting legal proceedings against his client, which he claimed Pawlus didn’t do.

But Hoye noted there was no “month-to-month tenancy” in this case, which would have caused that section to be in effect.

Still, Brickman had argued there was an “implied” agreement that Leonardi was going to continue to rent the Fantasy Island building after last November.


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