Apple Valley Mall v. Floyd Realty Co., Inc., 97-4157 (1998) (1998)

Citation: Apple Valley Mall v. Floyd Realty Co., Inc., 97-4157 (1998) (1998)
Parent Document: Apple Valley Mall v. Floyd Realty Co., Inc., 97-4157 (1998) (1998)
Jurisdiction: Rhode Island (state)
Effective Date: 1998-03-30
Original Source: https://www.courtlistener.com/opinion/4113657/apple-valley-mall-v-floyd-realt... ↗

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Furthermore, the defendant argues that the February 1997 monthly rent installment and operating expense payments should have been applied to the prior balances then due under the notice of nonpayment and not applied to the February 1997 rent installment or operating expenses not due as of the notice of termination date. The plaintiff argues that the defendant's willful and deliberate default for nonpayment of rent continued for ten days after the notice of nonpayment. The plaintiff states in its memorandum that it mailed the notice of nonpayment on January 28, 1997 and argues that the defendant had ten days from January 31, 1997, seventy-two hours after mailing as provided in Paragraph 28.1 of the lease, or February 10, 1997, in which to cure the default. However, both the plaintiff and defendant state in their memoranda of law that the defendant did not receive the notice of nonpayment until February 3, 1997. The plaintiff did not present sufficient evidence to overcome defendant's argument that the notice of nonpayment should had been received prior to February 3, 1997, if in fact it was mailed via certified mail on January 28, 1997. The Court finds that the notice of termination was not mailed on January 28, 1997 and that the defendant had ten days from receipt, or until February 13, 1997, in which to cure the nonpayment. Additionally, the plaintiff relies on the February 4, 1997 letter acknowledging that the January 1997 and February 1997 monthly rent payments were erroneously underpaid and that defendant did not make payment but rather stated that "[a] check in the amount of $3,786.00 is being processed to clear up the rental balances." Defendant's Exhibit CC.

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