Opinion
DOCKET NO. A-2505-14T1
10-03-2016
PATRICIA S. EGAN, Plaintiff-Appellant, v. 53-54 PALISADES HUDSON ASSOCIATES, LLC, LOUIS BERTINATO, individually and as principal of 53-54 PALISADES HUDSON, LLC, VICTOR PEREZ and, THE COLAO GROUP, LLC, Defendants-Respondents.
Peter A. Ouda argued the cause for appellant. JoAnne M. Bonacci argued the cause for respondents Louis Bertinato and The Colao Group, LLC (Dreifuss Bonacci & Parker, PC, attorneys; Ms. Bonacci, of counsel and on the brief; Paul M. McCormick, on the brief). Marc C. Singer argued the cause for respondent 53-54 Palisades Hudson Associates, LLC (Saiber, LLC, attorneys; Mr. Singer, of counsel and on the brief). Respondent Victor Perez has not filed a 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fuentes, Simonelli and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6821-08. Peter A. Ouda argued the cause for appellant. JoAnne M. Bonacci argued the cause for respondents Louis Bertinato and The Colao Group, LLC (Dreifuss Bonacci & Parker, PC, attorneys; Ms. Bonacci, of counsel and on the brief; Paul M. McCormick, on the brief). Marc C. Singer argued the cause for respondent 53-54 Palisades Hudson Associates, LLC (Saiber, LLC, attorneys; Mr. Singer, of counsel and on the brief). Respondent Victor Perez has not filed a brief. PER CURIAM
Plaintiff Patricia S. Egan appeals from the December 19, 2014 Law Division order, which denied her motion to enter judgment against defendants 53-54 Palisades Hudson Associates LLC (Palisades Hudson), Louis Bertinato, Victor Perez and The Colao Group, LLC (Colao Group). For the following reasons, we affirm.
We shall sometimes collectively refer to Palisades Hudson, Bertinato, Perez and Colao Group as defendants.
We derive the following facts from the record. On October 13, 2006, Palisades Hudson executed a note to plaintiff in the amount of $3.5 million, and a mortgage on property located in West New York. In connection with the transaction, Bertinato loaned plaintiff $1 million, which plaintiff used to finance the loan to Palisades Hudson. Plaintiff executed a promissory note to Bertinato in the amount of $1 million.
Palisades Hudson defaulted on the note. On September 5, 2008, plaintiff filed a complaint for foreclosure in the Chancery Division. On September 10, 2008, plaintiff filed a complaint in the Law Division against defendants for judgment on the note, enforcement of Bertinato's, Perez's and Colao Group's personal guarantees of payment of the note, and judgment on a promissory note evidencing a separate $100,000 loan to Bertinato. Bertinato filed a counterclaim against plaintiff for judgment on the $1 million promissory note.
After extensive negotiations, on December 16, 2010, the parties entered into a global settlement. The settlement agreement provided that defendants would pay plaintiff $2.75 million in two installments: (1) $2.7 million by August 30, 2011; and (2) $50,000 by December 30, 2011. To secure payment, Palisades Hudson executed a consent judgment for $4.1 million, and Bertinato, Perez and the Colao each executed a consent judgment for $2.7 million. The consent judgments were to be held in escrow and released to plaintiff without restriction if either of the two payments were not timely made. Plaintiff could then submit the consent judgments to the court for entry and docketing.
The settlement agreement required plaintiff to adjourn any foreclosure sale that was scheduled to occur before August 30, 2011 and, if defendants made the first payment, to continue to adjourn the foreclosure sale until December 30, 2011, to allow defendants to make the second payment. The settlement agreement also required plaintiff to assign to Bertinato $1 million of her $3.5 million mortgage on the mortgaged property.
On December 16, 2010, the court entered an order dismissing the Law Division matter with prejudice. Thereafter, defendants did not make any payments and plaintiff did not execute an assignment to Bertinato.
Before the first payment was due, on June 9, 2011, the court entered final judgment in the foreclosure matter in the amount of $5.7 million. On August 31, 2011, plaintiff wrote to the Law Division requesting entry of the consent judgments on the docket. Because defendants opposed plaintiff's request, the court directed plaintiff to file a formal notice of motion, and directed the parties to appear for a case management conference. At the case management conference, the court declined to enter the consent judgments on the docket, but did not enter an order memorializing this decision.
In October 2011, plaintiff, through her company, Camataco, LLC, acquired title to the property via a foreclosure sale. In May 2013, plaintiff entered into an agreement to sell the property to D.R. Mon Group, Inc. (D.R. Mon) for $3.6 million.
In September 2014, plaintiff filed a motion in the Law Division for entry of judgment against defendants for breach of the settlement agreement and entry of the consent judgments. In opposition, defendants argued that plaintiff breached the settlement agreement by failing to execute the assignment to Bertinato, and that the pending sale of the property to D.R. Mon may result in an inequitable windfall to her.
In a December 19, 2014 order and written opinion, the court denied the motion. The court found that plaintiff breached the settlement agreement by failing to execute the assignment to Bertinato. The court also found that entry of the consent judgments would be inequitable because plaintiff acquired the property and sold it. The court acknowledged that to permit plaintiff to obtain both the purchase price of the property and collect the full amount of the consent judgments would amount to an inequitable double recovery. Although the court was incorrect that the property was sold, the property was ultimately sold on August 11, 2015, to TAD Hudson Heights, LLC (TAD Hudson) for $4.25 million.
We permitted defendants to supplement the record with documents evidencing the sale.
On appeal, plaintiff argues the judge erred in finding that she breached the settlement agreement. Alternatively, plaintiff argues that this matter should be remanded for a hearing to determine who breached the settlement agreement. We have considered these arguments in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by the court in the December 19, 2014 written opinion. However, we make the following brief comments.
For the first time in her reply brief, plaintiff argues that she is entitled to the deficiency on the foreclosure judgment. We will not consider an issue raised for the first time in a reply brief that does not present a matter of great public interest. Goldsmith v. Camden Cnty. Surrogate's Office, 408 N.J. Super. 376, 387 (App. Div.), certif. denied, 200 N.J. 502 (2009). --------
In order to prevent a double recovery by a judgment creditor against a judgment debtor, "the judgment debtor [is] entitled to a credit for either the [mortgaged] property's fair market value, if the property was retained by the judgment creditor, or to the amount realized by the judgment creditor in a sale of the property to a third party." MMU of N.Y. v. Grieser, 415 N.J. Super. 37, 47 (App. Div. 2010) (citing Smith v. Lopez, 304 N.J. Super. 26, 32 (Ch. Div. 1996)). Plaintiff brought this action to recover monies owed to her under the mortgage note and settled for $2.75 million. She concedes that she sold the mortgaged property for $4.25 million. Thus, she has been made whole and would obtain an unconscionable windfall if allowed to retain the $4.25 million and also recover the amounts of the consent judgments.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION