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Fressie v. DiStasio & Van Buren

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 1, 2007

JOHN FRESSIE, PLAINTIFF-APPELLANT,
v.
DISTASIO & VAN BUREN, INC., DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2466-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 15, 2007

Before Judges Graves and Lihotz.

This dispute arises out of an alleged breach of a lease agreement between Bascom Corporation (landlord) and defendant DiStasio & Van Buren, Inc. (tenant). In his pro se complaint, plaintiff John Fressie alleged the lease agreement expired on December 1, 2005, and he sought the sum of $25,536.67 for unpaid rent and utilities. Plaintiff appeals from an order dated August 18, 2006, dismissing his complaint with prejudice and an order dated September 26, 2006, denying his motion for reconsideration. Plaintiff's complaint was dismissed because plaintiff was not a party to the lease agreement he sought to enforce, and, pursuant to R. 1:21-1(c), plaintiff is not permitted to represent the corporate landlord.

On appeal, plaintiff presents the following arguments:

POINT A

THE LOWER COURT FAILED TO RECOGNIZE JOHN FRESSIE'S STANDING TO SUE AS OWNER OF THE SUBJECT PROPERTY[.]

POINT B

THE LOWER COURT ERRED BY FINDING THAT JOHN FRESSIE FAILED TO COMPLY WITH RULE 1:21-1(c)[.]

POINT C

THE LOWER COURT IMPROPERLY DISMISSED THE COMPLAINT FOR JOHN FRESSIE'S FAILURE TO COMPLY WITH RULE 1:21-1(c)[.]

POINT D

THE LOWER COURT IMPROPERLY DISMISSED THE COMPLAINT WITH PREJUDICE[.]

POINT E

THE LOWER COURT'S ORDER IMPROPERLY DISMISSED A NON-PARTY'S CLAIMS WITH PREJUDICE[.]

After considering plaintiff's contentions in light of the record and the applicable law, we conclude they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm with only the following comments.

It is clear from the record that the lease agreement plaintiff sought to enforce involved two separate corporations. In fact, an addendum to a lease renewal agreement between Bascom Corporation and defendant was signed by John A. Fressie, as President of Bascom Corporation. Thus, defendant sought to dismiss plaintiff's complaint because "Bascom Corporation is the Landlord on the Lease (not John Fressie)," and "R. 1:21-1(c) prohibits John Fressie from representing Bascom Corporation." The trial court's rationale, as set forth on the order of dismissal, was as follows: "This lawsuit is based on an alleged breach of a lease between 2 corporate or business entities. Plaintiff has provided no documentation indicating he was assigned any rights or is a successor in interest. As a consequence R. 1:21-1(c) precludes this suit by Mr. Fressie."

In a certification dated August 30, 2006, in support of his motion for reconsideration, plaintiff stated he is the sole owner of Bascom Corporation, which he uses "to service my numerous entities. I presently own approximately 25 separate pieces of real property, under numerous entities." Thus, the record fully supports the trial court's determination that plaintiff is not the proper party with standing to prosecute a claim against defendant for unpaid rent and utilities. See Stubaus v. Whitman, 339 N.J. Super. 38, 47 (App. Div. 2001) ("Standing refers to the plaintiff's ability or entitlement to maintain an action before the court. Courts will not entertain matters in which plaintiffs do not have sufficient legal standing." (quoting New Jersey Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402, 409 (App. Div. 1998))), certif. denied, 171 N.J. 442 (2002).

The only orders noted on plaintiff's notice of appeal and his case information statement are the orders dated August 18, 2006, and September 26, 2006. A subsequent order dated December 8, 2006, denying plaintiff's application to amend his complaint has not been designated, or added by amendment, as one of the orders to be reviewed on appeal. Our review, therefore, is limited to the order granting defendant's motion to dismiss plaintiff's complaint and the order denying plaintiff's motion for reconsideration. Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 460-61 (App. Div.), certif. denied, 174 N.J. 544 (2002); Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994); Pressler, Current N.J. Court Rules, comment 6.1, on R. 2:5-1(f)(1) (2007).

Affirmed.

20070601

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