216 Jamaica Avenue v. S & R Playhouse Realty Co.

Filing 52

Opposition to 50 Motion for leave to Amend Answer Instanter filed by 216 Jamaica Avenue. (Attachments: # 1 Exhibit A -- Jacobs v. Jacobs, # 2 Exhibit B -- Broad v. Barnes, # 3 Exhibit C -- Rogan v. Lane, # 4 Exhibit D -- Maiden v. APA Transp. Corp., # 5 Exhibit E -- Kegg v. Mansfield, # 6 Exhibit F -- Deed, # 7 Exhibit G -- Affidavit of Robert Quesada, # 8 Exhibit H -- Venner Deposition Excerpts, # 9 Exhibit I -- 2001 Certificate, # 10 Exhibit J -- Frank B. Thomas Trust v. Imperial 400 Nat'l, Inc., # 11 Exhibit K -- Hill v. City of Urbana, # 12 Exhibit L -- Hatry v. Painesville & Youngstown Ry. Co., # 13 Exhibit M -- Kilgus v. Minnesota Mut. Life Ins., # 14 Exhibit N -- Hill v. Osborne, # 15 Exhibit O -- Bahner's Auto Parts v. Banher)(Cooper, Charles)

216 Jamaica Avenue v. S & R Playhouse Realty Co.

Doc. 52 Att. 7

Case: 1:06-cv-01288-CAB Doc #: 52-8 Filed: 11/10/08 1 of 4. PageID #: 1131

Exhibit H

Excerpts of Deposition of Stuart Venner

Dockets.Justia.com

Case: 1:06-cv-01288-CAB Doc #: 52-8 Filed: 11/10/08 2 of 4. PageID #: 1132

Depo. Tr. -- Venner, Stuart 2006-12-15.txt 0130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0131 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0132 1 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION ----------------------x 216 JAMAICA AVENUE, LLC, Plaintiff, - against S & R PLAYHOUSE REALTY CO., Defendant. ----------------------x December 15, 2006 9:30 a.m. Volume II CONTINUED DEPOSITION of STUART VENNER, taken by the attorney for the Defendant, pursuant to Notice, held at 335 Madison Avenue, New York, New York, before Michael Catania, a Notary Public of the State of New York. * * * *

APPEARANCES COOPER & KIRK, PLLC 555 Eleventh Street NW Suite 750 WASHINGTON, DC 20004 Attorneys for Plaintiff BY: DAVID M. LEHN, ESQ.

THOMPSON HINE, LLP 3900 Key Center 127 Public Square Cleveland, Ohio 44114-1291 Attorneys for Defendant BY: GARY L. WALTERS, ESQ. (0071572)

S. Venner STUART V E N N E R, residing at 237 Carlton Avenue, Brooklyn, New York, 11215, called as a witness, having been previously sworn, was examined and testified as follows: CONTINUED EXAMINATION BY GARY WALTERS, ESQ.: Q. Good morning, Mr. Venner. A. Good morning.

Case: 1:06-cv-01288-CAB Doc #: 52-8 Filed: 11/10/08 3 of 4. PageID #: 1133

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Depo. Tr. -- Venner, Stuart 2006-12-15.txt conditions for the windfalls, you are talking about potential for windfalls; are you not? S. Venner A. I don't know the difference. I do not see the difference. Q. When Congress passed the law, regardless of the actual effects of the law, whether parties to the contracts or leases which are affected any change of the law are leasing authorities, and if they are losing their shares makes no difference. A. I think that was the intention. Q. So that you can lose your shirt and you can receive a windfall? A. Yes. Q. That makes no sense to me whatsoever. MR. LEHN: Objection. MR. WALTERS: Let's take a short break. (Recess taken at this time.) Q. We have just returned from the break. Was the purpose of the break to discuss this morning's testimony with counsel? MR. LEHN: I am instructing him not to answer that. That is privileged communication. Q. Did you have a discussion with your S. Venner counsel during the break? A. I spoke to him, yes. Q. Did you do anything else during the break? A. Took a walk. Q. Did you take a walk with counsel? A. Yes. Q. Did you do anything else? A. No. Q. Do you want to change any of your testimony based upon your break? THE WITNESS: Can you go back and read the last question and answer? And I can continue from there. A. It may not make sense to you, but basically if they are losing $10 now or whatever they are losing, they would be losing significantly more if they were paying the proper rent. So that the tenant of the building is actually receiving a windfall because they are not paying what they are supposed to be paying. Q. In other words, to you a windfall would be, and they should have been losing a lot S. Venner of money instead of a little money; is that correct? A. I -- I think they should just be performing the terms of the lease just like everyone else. Q. Is S & R Realty receiving a windfall on this property?

Case: 1:06-cv-01288-CAB Doc #: 52-8 Filed: 11/10/08 4 of 4. PageID #: 1134

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Depo. Tr. -- Venner, Stuart 2006-12-15.txt A. I think I have answered that. Q. Can you answer it again? A. Yes. Q. Let me ask you this: I am going to put back in front of you Defendant Exhibit B, which is the 1031 Exchange Opportunity sheet you received from Kimco. Remind me what the cap rate is listed at the bottom of the page. A. 3.911. Q. Give or take a bit, is that cap rate more or less right? A. Right in -Q. Is it correct? A. Mathematically correct? Q. Yes. A. We are not talking about is this the S. Venner correct rent. We are saying is this the correct mathematical computation. Q. That's a great question. I will back up a bit. The cap rate would be based on one, the purchase price. And we were not able to agree, and that's fine. It is either 895 or $845,000? A. Right. Q. And upon annual rent of $35,000 per year? A. Yes. Q. Based upon those givens, is that the correct cap rate? A. Yes, give or take. Q. Okay. I think we agreed that cap rate would increase considerably if the rent were a million dollars? A. Yes. Q. The value of the building, though, is based upon a rent of $35,000; is that correct? A. The value of the building under what -Q. The value of 895 or $845,000 is based S. Venner on the annual rent under lease of $35,000 a year? A. We are talking within the framework of this piece of paper? Q. Yes. A. Yes. Q. I am talking about this sheet of paper. If the rent is a million dollars a year, the value of the building would go up considerably; is that correct? A. Yes. Q. And the cap rate would be much higher? A. Yes. Q. If you were to receive -- Jamaica were to receive a million dollars in rent per year, you would be receiving a windfall; is that correct?