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Sjogren Inc. v. Caterina Insurance Agency

Decided: July 5, 1990.

SJOGREN, INC., A NEW JERSEY CORPORATION, PLAINTIFF,
v.
CATERINA INSURANCE AGENCY, A NEW JERSEY CORPORATION, GENNARD CATERINA, PAUL GANCI, AND ITS OFFICERS, AND GENNARD CATERINA AND CAROLINE CATERINA H/W, DIRK OSTROFF, MARVIN OSTROFF, AND OSTROFF-MERIDIAN ASSOCIATES, DEFENDANTS



Serata, J.s.c.

Serata

OPINION

This is a motion for costs and attorneys fees brought pursuant to N.J.S.A. 2A:15-59.1. This action was commenced by plaintiff on November 17, 1989 by the filing of a Verified Complaint and Order To Show Cause.

The complaint was verified by Loriann Sjogren, the Vice President of Sjogren, Inc., the plaintiff in this action.

It is alleged that all of the defendants conspired to conceal the existence of a lease under which defendant Dirk Ostroff occupies a trailer on property purchased by plaintiff from defendant Caterina, and that plaintiff had no knowledge of the existence of the lease until after settlement which occurred in September 1988. It further alleges that the occupation of the property by Mr. Ostroff constitutes a "tenancy by fraud" and that defendants despite plaintiff's demands, have refused to vacate the property. The complaint was filed after the defendant

Dirk Ostroff sent notice that he was exercising his option to renew the lease for an additional five years.

Defense counsel was retained after the defendant had been served with an Order to Show Cause and Verified Complaint. After reviewing the allegations of the complaint, discussing this matter with his client and reviewing the documentation which was presented by the clients, attorney for the defendant believed that this matter had been improperly brought by the plaintiff.

Counsel for the defendant contacted the plaintiff's counsel and advised them that their clients had been sent a letter prior to settlement advising them of the existence of the lease agreement and a provision in the agreement allowing for a five year renewal by the tenant.

Both parties agreed to a postponement of the return date of the Order to Show Cause and also an extension of the defendant's time to file an answer to the complaint. These extensions were agreed upon to allow the matter to be investigated more fully.

On December 1, 1989, defense counsel forwarded a letter to the attorneys for the plaintiff. In this letter the defendant's attorney stated that he believed that the plaintiff had full knowledge before settlement of the existence of a trailer on the property and that the allegations of the complaint were false. In support of this position defense counsel sent to the plaintiff's attorney a copy of the letter dated July 7, 1988 from realtor, Judy Stanger, which advised the plaintiff of the existence of the defendant's lease and his option to renew.

The defendant's attorney, based upon the aforementioned information requested that the action be dismissed against his client.

Plaintiff refused to dismiss and discovery continued in this matter. On March 20, 1990 subsequent to the deposition of Glendon Harris (the senior vice president of Sjogren, Inc.), the

plaintiff forwarded to the defendant a stipulation of dismissal with prejudice.

Defendant intended to reserve the right to make the application for attorneys fees under N.J.S.A. 2A:15-59.1, and therefore did not sign and return the stipulation of dismissal with prejudice.

The day before defendant's motion was to be heard the plaintiff attempted to withdraw its stipulation of dismissal in the hopes that such action would force the Court to dismiss the defendant's motion.

Since there is a paucity of reported decisions in New Jersey (see Evans v. Prudential Property & Cas. Ins. Co. 233 N.J. Super. 652, 559, 559 A.2d 888 (Law Div.1989) and Iannone v. McHale, 236 N.J. Super. 227, 565 A.2d 422 (Law Div.1989) as of this writing and no appellate decisions, it is necessary to ...


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