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Schettino v. Roizman Development Inc.

April 23, 1998


Argued March 23, 1998

On appeal from Superior Court of New Jersey, Law Division, Bergen County.

Before Judges Landau and Collester.

The opinion of the court was delivered by: Landau, J.A.D.

Plaintiff John Schettino, a licensed New Jersey real estate broker, filed a complaint in the Law Division against defendants Roizman Development, Inc., Israel Roizman (Roizman), Fairview Associates '94 L.P. (Fairview), Biltmore Properties, Ltd., Inc. (Biltmore), Crystal Lake, Inc. (Crystal), and Belgiovine Enterprises, Belgiovine Enterprises, Inc. and Belgiovine Development (collectively referred to as Belgiovine defendants) *fn1.

Roizman is the principal shareholder of Roizman Development, one of three general partners of Fairview (collectively referred to as Roizman/Fairview). Crystal is the successor-in-interest to Biltmore (collectively referred to as Biltmore/Crystal).

Plaintiff's complaint alleged his right to a commission totaling $390,000 for the sale of property known as Lot 3, Block 721 and 371-377 Bergen Boulevard, Fairview, New Jersey (the "property"), and tortious interference with this right.

Roizman/Fairview defendants served and filed an offer of judgment with the Law Division in favor of plaintiff in the amount of $1,000. Thereafter, those defendants moved for summary judgment, and plaintiff filed a cross-motion to compel discovery of documents in a controversy between one of the principals of the Belgiovine defendants, Vincent Belgiovine (Belgiovine), and Roizman Development.

The Judge granted summary judgment in favor of Roizman/Fair-view, dismissing the complaint as to them with prejudice. Plaintiff's cross- motion to compel production of documents was denied. We denied leave to appeal on April 22, 1997.

Roizman/Fairview's motion for an award of counsel fees pursuant to R. 4:58-3 was granted on May 2, 1997. The Judge fixed the fee award at $17,746.44. Apparently unaware of our denial of leave to appeal, enforcement and execution of the counsel fees award was stayed pending final Disposition of plaintiff's "appeal" to the Appellate Division.

On June 16, 1997, plaintiff filed a notice of "appeal" purportedly from the order granting counsel fees to Roizman/ Fairview. In August 1997 a consent order for final judgment was entered among the parties pursuant to R. 4:42-2, providing judgment in favor of Biltmore/Crystal, dismissing plaintiff's complaint against them with prejudice. This rendered final the previous orders. Plaintiff then filed an amended notice of appeal, challenging the orders granting summary judgment and awarding counsel fees to Roizman/Fairview, as well as the consent order that entered final judgment.

The Factual Background

Plaintiff was the broker for a sale of the property in late 1985 or early 1986. He was paid a commission. The property was sold again in 1988 by Biltmore to the Belgiovine defendants, with Biltmore retaining a mortgage on the property. Although plaintiff was not involved in this sale he "knew of" Belgiovine.

In November 1993 plaintiff's brother told him that Leon Sokol, Roizman's attorney, wanted to arrange a meeting between Roizman and the current owner of the property. Plaintiff met with Roizman, Sokol and Belgiovine at the property in November 1993. According to plaintiff, Roizman's purchase for a price named by Belgiovine as $12,000,000 was discussed, as was the pending foreclosure on the property by Biltmore, the mortgage holder. Roizman also requested building plans from Belgiovine at that time. Later, Sokol called plaintiff noting that the building plans had not been delivered. Plaintiff spoke with Belgiovine, who then delivered a set of plans. No listing agreement was entered into between plaintiff or his brokerage firm, and any of the defendants.

In 1990, long before the November 1993 meeting, Belgiovine Enterprises, Inc., the owner of the subject property, filed its Chapter 11 Bankruptcy petition. Biltmore, holder of Belgiovine's mortgage, obtained relief from the automatic bankruptcy stay pursuant to a consent order in 1991, and continued the foreclosure action already filed in the Chancery Division, Bergen County. The Chapter 11 reorganization proceeding was converted to a Chapter 7 liquidation by consent order in 1992. In 1993, judgment in the foreclosure action was entered in favor of Biltmore. An order authorizing abandonment of the property and a second order authorizing a sheriff's sale of the property pursuant to the ...

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