Opinion
DOCKET NO. A-5540-14T1
11-18-2016
BURN SURGEONS OF SAINT BARNABAS, LLP, Plaintiff-Appellant, v. DAVID LUGASHI, RACHEL LUGASHI and LEANN LUGASHI, Defendants-Respondents.
James C. Bender, attorney for appellant. Tomes & Hanratty P.C., attorneys for respondents (Edward Hanratty, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Reisner and Sumners. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3695-14. James C. Bender, attorney for appellant. Tomes & Hanratty P.C., attorneys for respondents (Edward Hanratty, on the brief). PER CURIAM
Plaintiff Burn Surgeons of Saint Barnabas, LLP, a judgment creditor, appeals from a July 13, 2015 order granting summary judgment dismissing its complaint for fraudulent conveyance, filed against the judgment debtors, defendants David and Rachel Lugashi (David and Rachel or the parents), and their daughter Leann Lugashi. Plaintiff also appeals from a December 5, 2014 order granting defendants' motion to vacate default, and a May 13, 2015 order denying plaintiff's motion for a second discovery extension.
Intending no disrespect, we refer to the individual defendants by their first names. --------
Plaintiff's appellate arguments concerning the two interlocutory orders are without sufficient merit to warrant discussion beyond these brief comments. R. 2:11-3(e)(1)(E). We review those orders for abuse of discretion. See Resolution Trust Corp. v. Associated Gulf Contractors, Inc., 263 N.J. Super. 332, 340 (App. Div.), certif. denied, 134 N.J. 480 (1993); Wilson v. Amerada Hess Corp., 168 N.J. 236, 253 (2001). After reviewing the record, we find no abuse of the trial court's discretion in vacating the default under Rule 4:43-3. Plaintiff argues that defendants did not present evidence of a meritorious defense. See Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), affirmed, 43 N.J. 503 (1964). We disagree.
Plaintiff's complaint, filed in May 2014, asserted that plaintiff held a 2014 judgment for about $60,000 against the parents for medical services rendered to David in 2010. Plaintiff claimed that in 2011, after it sent "dunning notices" to the parents, they sold their house to their daughter for less than a reasonably equivalent value. See N.J.S.A. 25:2-25; N.J.S.A. 25:2-27. In support of their motion to vacate default, defendants produced evidence that the daughter paid fair value by obtaining a bank loan for $217,000, secured by a mortgage on the house, which she used to pay her parents for the property, and by forgiving debts they owed her in the amount of about $147,000. If true, that could constitute a meritorious defense.
We likewise find no abuse of discretion in the denial of plaintiff's untimely second motion to extend discovery. Plaintiff asserted that it wished to retain a new attorney with greater expertise in real estate matters and speculated that the new attorney might want to obtain additional discovery. Plaintiff did not specify what that discovery might be. The judge properly denied that motion without prejudice to a new attorney filing a discovery extension motion after he or she was actually retained. See Packaging Industries, Ltd. V. Hayduchok, 94 N.J. Super. 494, 497 (App. Div.), certif. denied, 50 N.J. 87 (1967). Plaintiff never retained new counsel and no new motion was filed.
Finally, we conclude that the case was properly dismissed on summary judgment. Defendants produced legally competent evidence to support their defenses. However, plaintiff failed to produce an expert report opining as to the fair market value of the house. The motion judge rejected as insufficient plaintiff's attorney's representation that he intended to rely on the tax assessment of the house and he intended to subpoena the municipal tax assessor to testify as to the assessment.
We agree that plaintiff could not establish a case of fraudulent conveyance without proving the value of the allegedly fraudulently-conveyed property, compared to the value of the consideration paid for it. See N.J.S.A. 25:2-27(a); Nat. Westminster Bank NJ v. Anders Engineering, Inc., 289 N.J. Super. 602, 610 (App. Div. 1996). However, plaintiff failed to retain an appraiser to provide an expert valuation report. Plaintiff's proposed reliance on the municipal tax records was inadequate. See Andrew Realty Co. v. Little Falls Twp., 2 N.J. Tax 114, 116 (Tax Ct. 1981) (recognizing that "it is common knowledge that assessments in any taxing district are not necessarily the equivalent of true value"); see also Piscataway Association, Inc. v. Piscataway Twp., 73 N.J. 546, 551 (1977).
Further even if the assessment itself were admissible, it could not constitute an expert report. Without a narrative explanation as to how the assessor arrived at the value, the assessment would constitute a net opinion. Townsend v. Pierre, 221 N.J. 36, 55 (2015). We also agree with the motion judge that plaintiff could not subpoena the tax assessor to give an expert opinion as to the value of the property. See Rocco v. New Jersey Transit Rail Operations, Inc., 330 N.J. Super. 320, 342-43 (App. Div. 2000).
Summary judgment was correctly granted. Plaintiff's arguments on this point do not warrant further discussion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION