WILKES-BARRE – The Kmart Corporation says it is owed millions of dollars in damages its Edwardsville store suffered during flooding in the Wyoming Valley.
In a lawsuit filed in Luzerne County Court this week, Kmart alleges it is owed more than $9 million after the Mark Plaza Fifty, LP, a subsidiary of Acadia Realty Trust, failed to take preventative measures in ensuring the building would not flood over a several year period.
According to the complaint, Hurricane Agnes in 1972 damaged the store, as well as river flooding in 1975, 1996, 2004 and 2006.
In 2003, the suit says, the levee walls were raised near the Edwardsville shopping center, and in 2004, the Kmart Corporation installed a 4-foot flood barrier system at the entrances to the store.
Most recently during the September 2011 flood, the suit says the store sustained 11.5 feet of water and millions of dollars in damage to the building, merchandise, furniture, equipment and trade fixtures.
“Despite the express knowledge that there was a high probability of flooding, defendants failed to take any measures to prevent damages to (Kmart’s) property,” the suit states.
Mark Plaza Fifty and Acadia failed to maintain the building in a “safe, dry and tenantable condition” as required by a lease agreement entered into in March 1974.
“(Kmart’s) damages were caused solely by the acts and omissions of defendants, and were not caused or contributed to by any act or omission on part of (Kmart),” the suit states.
The suit alleges counts of negligence, breach of contract and unjust enrichment, and seeks more than $9 million in damages.
Senior Vice President of Acadia, Robert Masters, did not return a message seeking comment.
The suit says Mark Plaza and Acadia failed to warn Kmart of potential flooding, and failed to pay for repairs as required by a lease.
The defendants should have followed recommended flood mitigation procedures and sought to further protect Kmart’s property.
The suit says Mark Plaza and Acadia have an “obligation to reimburse (Kmart) with interest for monies expended to make emergency repairs to the building to prevent further damage,” and that Mark Plaza and Acadia have been “unjustly enriched” by failing to do so.