ORDER ON DEFENDANT'S MOTION TO DISMISS
A. M. Horton Justice
Defendant's Motion to Dismiss came before the court for oral argument October 27, 2014, with attorneys Mooney and Bryant presenting argument for Plaintiff and Defendant respectively.
The following facts are drawn from the Amended Complaint docketed August 29, 2014, and from other material that both parties have put into the record in connection with the Motion to Dismiss:
At all times relevant to this case, Plaintiff DL Properties, LLC [“DL”] owned Unit 209, Cottage Place Condominiums, a commercial condominium unit in the Town of York.When DL purchased Unit 209 in 2006, it was leased to a David Bouthot, doing business as Atlantic Laser Clinic (ALC). In 2007, Bouthot sold the assets of ALC to a Peter de Puy. The transaction was an asset purchase, but specifically excluded the laser used by ALC. De Puy continued operating ALC's business in Unit 209.
In 2009, DL as lessor and de Pay as lessee entered into a written lease of the Unit 209 premises, Dated August 26, 2009, the document is titled Commercial Lease, and on its face it is between de Puy individually and DL. The Lease includes the following provisions:
• Section 2 provides for a two-year lease term commencing September 1, 2009.
• Section 3 provides for base rent of $ 1, 250/month
• Section 27 provides that if de Puy remains in possession after expiration of the two-year term, the tenancy becomes month-to-month, terminable on 30 days' written notice by either party, at the same monthly base rent
• Section 8 provides for de Puy to use the premises "solely for the purpose of conducting a Laser Clinic."
• Section 9 addresses "alterations, decorations, sign, awnings, canopies, fixtures, additions and improvements, " and provides that unless all such are removed at the expiration or termination of the Lease, they become property of DL.
• Section 10(b) includes a provision requiring the lessee to remove "trade fixtures" on expiration or termination.
• Section 10(d) includes the following integration provision: "This Lease constitutes the entire agreement between Lessor and Lessee with respect to the subject matter contained herein and there are no understandings or agreements between Lessor and Lessee with respect to said subject matter which are not contained herein."
De Puy continued to operate ALC until January 2014, when, according to the Amended Complaint, he and ALC abandoned the premises. However, left on the premises was a laser unit, inferentially one used in the operations of ALC. DL took possession of the laser and is now keeping it in storage pending the outcome of ...