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ITZKOFF v. F & G REALTY OF NEW JERSEY

June 30, 1995

GERALD ITZKOFF, an Individual Partnership d/b/a GERALD ITZKOFF, Plaintiff,
v.
F & G REALTY OF NEW JERSEY, CORP., a Corporation of the State of New Jersey d/b/a FOREMOST COLD STORAGE, and FOREMOST COLD STORAGE, INC., a Corporation of the State of New Jersey, Defendants.



The opinion of the court was delivered by: WILLIAM G. BASSLER

 BASSLER, DISTRICT JUDGE:

 Defendant Foremost Cold Storage, Inc. ("Foremost") has moved under Federal Rule of Civil Procedure 56 for summary judgment dismissing the complaint of plaintiff Gerald Itzkoff, an individual partnership doing business as Gerald Itzkoff ("Itzkoff"), pursuant to New Jersey's entire controversy doctrine. For the reasons set forth below, the Court will grant Foremost's motion and dismiss plaintiff's complaint.

 I. BACKGROUND

 Plaintiff Gerald Itzkoff is an individual conducting business as a fur trader in the fur district of New York, New York. In that capacity, plaintiff sometimes utilized the storage facilities of defendant Foremost to store furs until they were sold.

 From 1987 through 1992, plaintiff stored furs at Foremost's storage facility located at 220 Ellison Street, Paterson, New Jersey. At some point while plaintiff's furs were being stored at defendant's facility, some furs were allegedly damaged by contamination or pickle brine. Plaintiff was notified of the damage to its furs on or about May 15, 1992.

 When notified of the damage to the furs, plaintiff contacted its insurance broker, Elliot Wexelman ("Wexelman"), and Wexelman's employer, Lustig Brokerage Co., Inc. ("Lustig"). Wexelman informed Itzkoff that Itzkoff's policy did not cover any goods located at the Foremost facility in Paterson.

 In July of 1992, plaintiff commenced an action in the Supreme Court of the State of New York ("the New York action"), and plaintiff filed an amended complaint in August of 1992. See Amended Complaint, McKinney Cert., Exh. A. Plaintiff named Wexelman and Lustig as defendants, as well as ASE Corporation ("ASE") (collectively, "the insurance defendants"). ASE was a corporation for whom Wexelman had worked at the time he placed the relevant insurance for Itzkoff. The essence of plaintiff's allegations in the New York action was that the insurance defendants had failed to provide insurance coverage that would indemnify plaintiff in the event that certain risks of loss occurred to its furs at various locations, including the Paterson facility. Plaintiff sought monetary damages in the amount of $ 250,000.

 In January of 1993, Itzkoff instituted a separate action in this Court ("the federal action") against F&G Realty of New Jersey, Corp., d/b/a Foremost Cold Storage ("F&G"). See Complaint, McKinney Cert., Exh. C. Plaintiff alleged that the negligence of F&G caused damage to the furs that had been stored at the Paterson facility.

 In March of 1993, Wexelman and Lustig instituted a third-party suit in the New York action against (i) Foremost Cold Storage, Inc. (the movant herein), (ii) Foremost Cold Storage of New York, Inc. (an entity that had nothing to do with the New Jersey entity that owned and operated the storage facility), and (iii) F&G (an entity that in 1991 had leased the Foremost facility in Paterson with an option to purchase the facility). See Third Party Complaint, McKinney Cert., Exh. B. The insurance defendants alleged that the third-party defendants' negligence caused the damage to the furs. Itzkoff never amended its complaint to assert a direct claim against any of the third-party defendants.

 In November of 1993, this Court issued a notice of call for dismissal of plaintiff's federal court action based upon plaintiff's failure to effect service of the summons and complaint upon F&G within 120 days of the filing of the complaint. See Fed. R. Civ. P. 4(m). F&G was never served with the summons and complaint, but in February of 1994, plaintiff filed an amended complaint naming Foremost--the movant herein and already a third-party defendant in the New York action--as a defendant. See McKinney Cert., Exh. D. Foremost answered the complaint in March of 1994.

 The New York action was tried before a jury in July and August of 1994. Itzkoff claimed that Wexelman and Lustig were negligent toward and breached their contract with Itzkoff on January 3, 1992, the date of the inception of the contract of insurance which allegedly should have provided coverage for the Foremost facility in Paterson. The third-party action of Wexelman and Lustig against Foremost was also presented to the jury as a matter joined but not consolidated for trial. The third-party plaintiffs argued that if they were liable to plaintiff for not obtaining the proper insurance coverage, then Foremost was liable to them as the party that caused the damage to the furs. Foremost put forth a defense theory to the jury that the damage to the furs occurred while the furs were under the watch of F&G in 1991, when F&G was allegedly running the warehouse.

 The judge who presided over the New York jury trial asked the jury to determine what percentage of the negligence of the insurance defendants, if any, was attributable to Foremost. On August 11, 1994, the jury returned a verdict which found (i) that Wexelman was liable to plaintiff, (ii) that Foremost failed to exercise reasonable care for the safety of plaintiff's furs, and (iii) that Foremost was liable to Wexelman for 67.7% of the $ 177,000 Wexelman was found to owe to Itzkoff.

 Foremost next filed this motion for summary judgment. Foremost argues that Itzkoff's complaint against it must be dismissed pursuant to New Jersey's entire controversy doctrine. For the reasons set forth below, the Court agrees and will dismiss plaintiff's complaint.

 II. DISCUSSION

 A. Summary Judgment Standard

 The standard for granting summary judgment pursuant to Federal Rule of Civil Procedure 56 is a stringent one. Summary judgment is appropriate only if all the probative materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). In determining whether there remain any genuine issues of material fact, the court must resolve all reasonable doubts in favor of the nonmoving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983); Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972). Significantly, "at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Under the standards announced by the Supreme Court's trilogy in Celotex Corp v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), Anderson, 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48 (emphasis in original). Indeed, where the moving party has made a properly supported motion for summary judgment, it is incumbent upon the nonmoving party to come forward with specific facts to show that there is a genuine issue of material fact for trial. Id. at 248. Thus, once the moving party has carried its burden of establishing the absence of genuine issues of material fact, the nonmoving party "may not rest upon mere allegations or denials" of its pleadings, Fed. R. Civ. P. 56(e), but must produce sufficient evidence that will reasonably support a jury verdict in its favor, id. at 249; J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring), and not just "some metaphysical doubt as to material facts." Matsushita, 475 U.S. at 586.

 Moreover, "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative summary judgment may be granted." Anderson, 477 U.S. at 249-50. "Consequently, the court must ask whether, on the summary judgment record, reasonable jurors could find facts that demonstrated, by a preponderance of the evidence, that the nonmoving party is entitled to a verdict." In re Paoli R.R. Yard PCB Litigation, 916 F.2d 829, 860 (3d Cir. 1990).

 B. Entire Controversy ...


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