1994, Sylvan provided Lark with a written notice of default, claiming that Lark had failed to pay the February 1994 rent. Id. ¶¶ 9-10. On March 9, 1994, Sylvan served on Lark a Notice to Quit requiring that the premises be vacated. Id. ¶ 11. Nevertheless, Lark continued to claim a right to possession and a right to exercise the option. Id. ¶ 12.
On April 6, 1994, Sylvan commenced a summary process action in state court. Lark removed the case to federal district court on April 21, 1994. In a Ruling filed on August 17, 1994, United States District Judge Alfred V. Covello ("Judge Covello") granted Sylvan's first motion to remand based on a finding that the court did not have subject matter jurisdiction. In sum, he concludedto have the option terminated. Lark's Memorandum at 11-17. In support of this argument, Lark first points to Sylvan's introduction, at the state court trial, of a tenant ledger reflecting rental payments from 1986 through 1994. It also points to correspondences introduced by Sylvan which address the issue of unpaid rent for November and December of 1992. These unpaid rents combined with the February rent are in excess of $50,000.00. Lark further directs the court to the testimony of Mr. Schinella ("Schinella") of Sylvan, who testified that Sylvan wanted to "get rid of Lark's option." Lark's Ex. N at 71-73. Finally, it maintains that it has initiated the process of exercising the option.
Lark argues that the introduction of the ledger and correspondences at trial "conclusively establishes that Plaintiff's