Zinc owners fight eviction

Property owners say they're within their rights
Melissa Topey
Dec 6, 2013


The owners of 124 Columbus Ave. say they are within their rights to evict the restaurateurs who operate there.

Diane and Gary Ackerman say it was legal for them to end the lease with Zinc Brasserie owners Cesare and Andrea Avallone.

The Ackermans, through attorney Carl Kamm, of Flynn, Py and Kruse, filed an answer Wednesday in Erie County Common Pleas court to the Avallone’s lawsuit, which sought to stop the eviction.

“This has been a month-to-month lease,” Kamm said.

As such, the Ackermans are not required to provide a 90-day notice or continue to honor the lease until it expires in May, he said. The lease, in effect since the Avallones moved into the building when Martha and James Bertsch owned it, did not create a renewable year-to-year agreement.

The Avallones could have approached the Ackermans to try to talk about the eviction, but instead chose to file a complaint in court, Kamm said.

In that complaint, the Avallones took aim at the Ackermans, alleging the forced eviction came because the Ackermans own the company that operates J. Bistro restaurant, which is also a downtown Sandusky hot spot that operates just around the corner from Zinc.

“This allegation is absurd and unnecessary for legal action,” Kamm said. “It was done to disparage none other than a family that has helped rebuild downtown.”

The Ackermans have filed their own claim, asking for an additional $1,400. They allege the Bertsch lease states that after the first year, the Avallones’ rent was to increase $100, from $950 to $1,050. The Ackermans are asking for the difference in the rent for the 14 months they have owned the building.

But the amount they’re asking for is not owed to the Ackermans, because the Avallones and the Bertschs modified the terms of the lease with a verbal agreement to continue paying $950, said Leslie Murray, attorney for the Avallones.

“When you take over a contract, you take the existing terms that it’s being operated under,” Murray said.

It was necessary to establish the allegation the Ackermans might have a motive to evict the Avallones because they own the company that operates J. Bistro, Murray said.

There is a possibility Erie County Common Pleas Court Judge Tygh Tone could consider the case under an equity instead of a legal framework, Murray said. In that case, the business relationship between the Ackermans and the Avallones is relevant.