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Greenwood Land Company v. Omnicare

March 29, 2013

GREENWOOD LAND COMPANY, PLAINTIFF,
v.
OMNICARE, INC., NCS HEALTHCARE OF NEW YORK, INC., AND OMNICARE OF NEW YORK, LLC, DEFENDANTS



The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronic Filing

MEMORANDUM ORDER

AND NOW, this 29th day of March, 2013, upon due consideration of defendant's motion for

leave to amend and the parties' submission in conjunction therewith, IT IS ORDERED that [90] the motion be, and the same hereby is, granted. Defendants shall file their amended answer without undue delay.

In 1994, Greenwood Land Company ("Greenwood"), as landowner of commercial property located in Sharon, Pennsylvania ("the property"), entered into a lease ("the lease") with Thrift Drug, Inc. ("Thrift"). The lease covered a term beginning March 2, 1994, and ending April 1, 2004. It contained two renewal periods which were to run from April 1, 2004 to April 1, 2009, and April 1, 2009 to April 1, 2014. The renewals were automatic in that the lease continued in force unless the tenant provided notice of intent not to renew at least six months prior to expiration of the current term.

In late 1997 or early 1998, the assets and liabilities of Thrift were acquired by NCS Healthcare of New York, Inc. ("NCS") and, on January 20, 1998, Thrift assigned its tenancy under the lease to NCS, a wholly-owned subsidiary of NCS Healthcare, Inc. In January 2003, Omnicare Inc., acquired NCS Healthcare, Inc., and according to Greenwood became the de facto assignee of the lease. Amended Complaint (Doc. 3) at ¶ 20(j). Greenwood alleges that defendants "refused to make payments for rent due under the lease after April 1, 2009." Id. at ¶ 24(c).

Greenwood seeks damages for non-payment of rent, real estate taxes, insurance fees and damages arising from the condition of the property at the time defendants' ceased paying rent/vacated the property. Defendants assertedly failed to care for and maintain the property as required by the lease, thereby causing significant damage to the premises. Id. at ¶¶ 20(j),(c),(f),(g). According to Greenwood, these property damages total at least $430,108.56 and its other damages include rent in the amount of $1,075,000.20, over $50,000 in real estate taxes, $16,640 in insurance and other related losses. Id. at ¶ 29.

On May 11, 2010, defendants filed an answer with affirmative defenses. Among other affirmative defenses defendants pled:

Fourth Defense

34. Plaintiff, by its own conduct, has waived the claims brought against Omnicare and/or NCS pursuant to this action..

* * * Eighth Defense

38. Plaintiff's claims are barred by the doctrine of Equitable Estoppel..

On April 23, 2012, defendants filed the instant motion to amend their answer to add ...


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