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Chernin v. Mardan Corp.

Decided: August 28, 1990.

SANFORD E. CHERNIN, PLAINTIFF,
v.
MARDAN CORPORATION, A NEW JERSEY CORPORATION; RARITAN VALLEY NATIONAL BANK, A BANKING CORPORATION OF THE UNITED STATES OF AMERICA; FEIN CONTAINER CORPORATION, A NEW JERSEY CORPORATION; LEND LEASE, A DIVISION OF NATIONAL CAR RENTAL SYSTEMS, INC., A CORPORATION OF NEVADA; THE HOWARD SAVINGS BANK, A NEW JERSEY CORPORATION; ROGER SMITH; CONTINENTAL FINANCIAL CORPORATION; STEPHEN PAINO, D/B/A PAINO ROOFING COMPANY; THE BLAU & BERG COMPANY, A NEW JERSEY CORPORATION; AND NEWARK INS. COMPANY, DEFENDANTS



Bachman, J.s.c.

Bachman

Plaintiff, Sanford E. Chernin, Esquire, pro se (hereinafter "Chernin"), seeks to foreclose on a tax sale certificate he purchased on December 21, 1987 concerning Lot 2 in Block 472 in the Borough of South Plainfield. Chernin is an attorney representing himself in this matter. Chernin filed the foreclosure complaint on January 19, 1990. Upon discovery of other potentially interested parties, Chernin filed an amended complaint on February 20, 1990 and a second amended complaint on March 14, 1990.

The amended complaint named as a defendant Lend Lease, a Division of National Car Rental Systems, Inc., a corporation of Nevada (hereinafter "Lend Lease"). The amended complaint alleged Lend Lease to own a portion or interest in the premises

subject to the tax sale certificate foreclosure. A deed from defendant Mardan Corporation to Lend Lease dated August 5, 1982 properly recorded in the County Clerk's office allegedly established Lend Lease's interest. Chernin erroneously believed that Lend Lease's property, Lot 2.01 in Block 472, was included within the metes and bounds description of the subject property, Lot 2 in Block 472. Chernin mistakenly relied on a pre-subdivision description of the property in ascertaining this information. As a consequence of a 1982 subdivision, Lot 2 and lot 2.01 in Block 472 became distinct parcels of property.

Upon being served with the amended complaint, Lend Lease contacted Chernin as early as April 23, 1990 indicating the descriptive error and requesting a dismissal of the suit against Lend Lease. Further, Lend Lease supplied Chernin with documents illustrating an accurate description of the property as well as proof of its full, current tax payments. To protect its interests, Lend Lease filed an answer on April 24, 1990.

Although possessing this information, Chernin failed to effectively act until at least June 27, 1990. In response to repeated attempts by Lend Lease's counsel to address these discrepancies, Chernin stated in a letter dated June 14, 1990 that "[I]t is a simple matter of not having time to review and compare metes and bounds descriptions. . . ." Chernin declared further that he would not address these issues until his return from vacation on June 27, 1990.

Subsequently, Chernin moved for leave to file a third amended complaint correcting the metes and bounds description to accurately reflect the property subject to this foreclosure action and delete Lend Lease as a party "improperly joined in the litigation." Lend Lease cross moved for dismissal with prejudice and for reasonable litigation expenses and attorney fees under the frivolous lawsuit statute, N.J.S.A. 2A:15-59.1 (1988) (hereinafter "frivolous claims statute").

The action against Lend Lease is dismissed with prejudice. The remainder of this opinion addresses Lend Lease's claim for costs and fees under the frivolous claims statute.

Unless authorized by court rule, statute, or contract the recovery of legal fees and litigation costs will generally be denied. Satellite Gateway Communications, Inc. v. Musi Dining Car Co., Inc., 110 N.J. 280, 540 A.2d 1267 (1988). Even when authorized, the awarding of fees and costs remains within a court's discretion. Helton v. Prudential Property & Cas. Ins. Co., 205 N.J. Super. 196, 200, 500 A.2d 717 (App.Div.1985); Iannone v. McHale, 236 N.J. Super. 227, 231, 565 A.2d 422 (Law Div.1989).

Recognizing this power, the Legislature recently enacted the frivolous claims statute empowering courts to award fees and costs to prevailing parties forced to address "frivolous" pleadings. N.J.S.A. 2A:15-59.1. In pertinent part, the statute provides:

a. A party who prevails in a civil action, either as plaintiff, or defendant, against any other party may be awarded all reasonable litigation costs and reasonable attorney fees, if the judge finds at any time during the proceedings or upon judgment that a complaint, ...


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