B-122755, MAR. 14, 1956

B-122755: Mar 14, 1956

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ANTONIO CAPUTI: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26. THERE WERE SUBMITTED WITH YOUR LETTER AN AFFIDAVIT EXECUTED ON MAY 30. YOU ATTEMPT TO DISAVOW THE RELEASE CONTAINED THEREIN ON THE BASIS OF A MISUNDERSTANDING OF ITS TERMS AND BECAUSE IT WAS WRITTEN IN ENGLISH. A LANGUAGE WITH WHICH YOU STATE YOU WERE NOT TOO FAMILIAR. YOU ASSERT TAT WHEN THE PREMISES WERE FINALLY RETURNED TO YOU ON JULY 3. THEY WERE RUINED. AS YOU WERE PREVIOUSLY ADVISED. SUCH REPORT IS TO THE EFFECT THAT THE DAMAGES CLAIMED REPRESENT NO MORE THAN FAIR WEAR AND TEAR INCIDENT TO THE PURPOSES FOR WHICH THE PREMISES WERE LEASED. IN REACHING SUCH CONCLUSION IT IS POINTED OUT THAT DURING THE ENTIRE OCCUPANCY UNDER THE LEASE.

B-122755, MAR. 14, 1956

TO DR. ANTONIO CAPUTI:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26, 1955, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR DAMAGES TO YOUR PROPERTY FORMERLY OCCUPIED BY ARMY PERSONNEL AS LIVING QUARTERS UNDER LEASE NO. ENG-8-S93-090, DATED APRIL 30, 1949.

IN SUPPORT OF YOUR REQUEST AND FOR THE PURPOSE OF SHOWING THE CONDITION OF THE PREMISES AT THE TERMINATION OF THE LEASE, THERE WERE SUBMITTED WITH YOUR LETTER AN AFFIDAVIT EXECUTED ON MAY 30, 1955, BY FRANK CAFORIO AND A STATEMENT DATED JUNE 22, 1955, BY ATTORNEY ALBINI. ALSO, YOU SUBMITTED A COPY OF YOUR LETTER OF MAY 11, 1953, TO THE AMERICAN RADIO COMMAND NOTIFYING THE COMMAND THAT UPON EXPIRATION OF THE LEASE YOU WOULD REQUIRE THE PREMISES RESTORED TO THE CONDITION EXISTING AT THE BEGINNING OF THE LEASE PURSUANT TO THE REQUIREMENTS OF PARAGRAPH 7. AS TO THE STATEMENT SIGNED BY YOU UPON TERMINATION OF THE LEASE, YOU ATTEMPT TO DISAVOW THE RELEASE CONTAINED THEREIN ON THE BASIS OF A MISUNDERSTANDING OF ITS TERMS AND BECAUSE IT WAS WRITTEN IN ENGLISH, A LANGUAGE WITH WHICH YOU STATE YOU WERE NOT TOO FAMILIAR. ALSO, YOU ASSERT TAT WHEN THE PREMISES WERE FINALLY RETURNED TO YOU ON JULY 3, 1953, THEY WERE RUINED, AND IN NEED OF EXTENSIVE REPAIRS.

AS YOU WERE PREVIOUSLY ADVISED, THE REPORT FROM THE DEPARTMENT OF THE ARMY DOES NOT SUPPORT YOUR CONTENTION AS TO THE CONDITION OF THE PREMISES AT THE TERMINATION OF THE LEASE. SUCH REPORT IS TO THE EFFECT THAT THE DAMAGES CLAIMED REPRESENT NO MORE THAN FAIR WEAR AND TEAR INCIDENT TO THE PURPOSES FOR WHICH THE PREMISES WERE LEASED. IN REACHING SUCH CONCLUSION IT IS POINTED OUT THAT DURING THE ENTIRE OCCUPANCY UNDER THE LEASE, NAMELY, FOUR YEARS AND TWO MONTHS, NO MAINTENANCE WAS PERFORMED BY YOU AS REQUIRED UNDER PARAGRAPH 9 OF THE LEASE AND THAT ALL MAINTENANCE WAS PERFORMED BY THE POST ENGINEER AT THE EXPENSE OF THE ARMY.

A REVIEW OF THE ENTIRE RECORD IN THE MATTER PRESENTS, IN THE FIRST INSTANCE, THE PERTINENT QUESTION AS TO THE LEGAL EFFECT OF YOUR SIGNED STATEMENT CONTAINING THE RELEASE. SUCH RELEASE RECITES THAT "THE PREMISES ARE RETURNED, AND ACCEPTED BY THE LESSOR, DR. ANTONIO CAPUTI, IN AS GOOD CONDITION AS THAT EXISTING AT THE TIME OF ENTRY INTO THE SAID LEASE, REASONABLE AND ORDINARY WEAR AND DAMAGE BY THE ELEMENTS EXCEPTED.' WHILE THE STATEMENT CONTAINING THE RELEASE IS DATED JUNE 30, 1953, YOU STATE THAT IT WAS SIGNED BY YOU WHEN THE BUILDING WAS RETURNED TO YOU ON JULY 3, 1953.

THE RELEASE CONTAINS NO EXCEPTION OR RESERVATION AS TO ANY CLAIM FOR DAMAGES. BY EXECUTING THE RELEASE YOU RELINQUISHED ANY RIGHT YOU OTHERWISE MIGHT HAVE HAD TO REQUIRE RESTORATION OF THE PREMISES OR ANY PAYMENT IN LIEU THEREOF. AS TO YOUR ATTEMPTED DISAVOWAL OF THE RELEASE BECAUSE OF YOUR UNFAMILIARITY WITH THE ENGLISH LANGUAGE, IT HAS BEEN ADMINISTRATIVELY REPORTED AS FOLLOWS:

"/1) THE ORIGINAL LEASE AGREEMENT DATED 30 APRIL 1949 WAS WRITTEN SOLELY (IN) ENGLISH. IT BEARS THE SIGNATURE OF DR. CAPUTI.

"/2) DUE TO ECONOMIC CHANGES DR. CAPUTI REQUESTED ADDITIONAL RENT ON 12 JUNE 1952. HIS REQUEST WAS IN ENGLISH.

"/3) AS A RESULT OF HIS REQUEST, ABOVE MENTIONED, A RENT INCREASE WAS GRANTED AND AN AMENDMENT MADE TO THE LEASE. THESE TWO DOCUMENTS WERE IN ENGLISH AND THE AMENDMENT SIGNED BY DR. CAPUTI WAS IN ENGLISH.

"/4) THE NOTICE OF TERMINATION OF THE LEASE WAS BY LETTER ADDRESSED TO DR. CAPUTI AND IT WAS IN ENGLISH.

"/5) DR. CAPUTI APPARENTLY UNDERSTOOD THE TERMINATION NOTICE AND APPARENTLY REQUESTED PERMISSION TO ENTER THE PREMISES PRIOR TO THE TERMINATION DATE TO EFFECT CERTAIN REMOVALS. THE AUTHORIZATION TO ENTER THE PREMISES WAS GRANTED ON 30 MARCH 1953 AND IT WAS IN ENGLISH.'

IN ADDITION TO THE FOREGOING, YOUR LETTER OF SEPTEMBER 26, 1955, STATES THAT YOUR FIRST DEMAND FOR RESTORATION OF THE PREMISES ON MAY 11, 1953, WAS HANDED TO CAPTAIN PETERS IN THE PRESENCE OF MR. FRANCO CAFORIO, WHO ACTED AS YOUR INTERPRETER. IN MR. CAFORIO'S AFFIDAVIT OF MAY 30, 1955, HE STATES THAT HE ACTED AS YOUR INTERPRETER AT THE SIGNING OF THE LEASE AND WHEN THE BUILDING WAS RETURNED TO YOU ON JULY 3, 1953. IN THE CIRCUMSTANCES, IT SEEMS REASONABLE TO CONCLUDE THAT IF YOU DID NOT UNDERSTAND THE STATEMENT CONTAINING THE RELEASE SIGNED BY YOU IT WOULD HAVE BEEN EXPLAINED TO YOU BY YOUR INTERPRETER, PARTICULARLY IN VIEW OF YOUR PRIOR NOTICE THAT YOU WOULD REQUIRE RESTORATION AND THE REPORTED DISCUSSIONS CONCERNING THE CONDITION OF THE BUILDING WHICH TOOK PLACE WHEN THE STATEMENT WAS SIGNED. ALSO, THERE IS NOTED THE STATEMENT IN YOUR LETTER OF SEPTEMBER 20, 1953, TO THE EFFECT THAT YOU SIGNED THE RELEASE MERELY TO RELEASE THE OFFICERS FROM THEIR EMBARRASSING POSITION. THE EXECUTION OF A RELEASE UNDER SUCH CIRCUMSTANCES CAN ONLY BE REGARDED AS EVIDENCING AN INTENTION ON YOUR PART TO ABANDON ANY RESTORATION CLAIM YOU MAY HAVE HAD.

THE LETTERS TO YOU OF FEBRUARY 15, AND MARCH 15, 1954, REFERRED TO BY YOU, WERE WRITTEN ONLY FOR THE PURPOSE OF FACILITATING THE FILLING OF YOUR CLAIM. THE LETTERS CONTAIN NO ADMISSION OF LIABILITY ON THE PART OF THE UNITED STATES AND, OF COURSE, EVEN THOUGH SUCH ADMISSION HAD BEEN MADE IT COULD NOT BE REGARDED AS OBLIGATING THE UNITED STATES FOR ANY PART OF YOUR CLAIM, PARTICULARLY IN VIEW OF THE RELEASE.

AS TO YOUR CLAIM FOR RENT FOR THE MONTH OF JULY, THE CORRESPONDENCE SHOWS THAT ON ONE OCCASION YOU STATED THAT THE BUILDING WAS TURNED BACK TO YOU ON JUNE 30, 1953, WHEREAS ON OTHER OCCASIONS YOU ASSERTED THAT THE BUILDING WAS NOT RETURNED TO YOU UNTIL JULY 3, 1953. FOR EXAMPLE, IN YOUR LETTER OF OCTOBER 26, 1954, IT IS STATED THAT YOU DID NOT COMPLAIN BECAUSE THE BUILDING WAS TURNED BACK TO YOU ON JUNE 30, 1953, THAT IS, BEFORE THE EXPIRATION OF THE LEASE, WHICH WAS TO BE IN 1958, BUT BECAUSE THE BUILDING WAS NOT RETURNED TO YOU IN THE SAME CONDITION AS THAT EXISTING AT THE BEGINNING OF THE TENANCY. HOWEVER, IN THE SAME LETTER YOU STATE IN EFFECT THAT THE BUILDING WAS RETURNED TO YOU ON JULY 3, 1953, AND NOT ON JUNE 30, 1953. ALSO, IN YOUR LETTER OF SEPTEMBER 20, 1953, AND SEPTEMBER 26, 1955, IT IS STATED IN SEVERAL INSTANCES THAT THE BUILDING WAS NOT RETURNED TO YOU UNTIL JULY 3, 1953. IN ANY EVENT, SINCE THE RELEASE SIGNED BY YOU ACKNOWLEDGED RETURN OF THE PREMISES TO YOU ON JUNE 30, 1953, THERE IS NO LEGAL BASIS FOR PAYMENT OF RENT FOR THE MONTH OF JULY 1953.

FOR THE REASONS STATED ABOVE, THERE IS NO PROPER BASIS FOR MODIFICATION OF THE PREVIOUS ACTION TAKEN ON YOUR CLAIM.