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Shapiro & Croland v. Bairan

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 1, 2007

SHAPIRO & CROLAND, PLAINTIFF-RESPONDENT,
v.
AURORA BAIRAN, DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT,
v.
BARRY I. CROLAND, BARRY L. BAIME, TARA SCHILLARI AND SHAPIRO & CROLAND, THIRD-PARTY DEFENDANTS/RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County, L-9059-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: May 22, 2007

Before Judges Kestin and Graves.

This matter began as an action for legal fees owed on account of plaintiff's representation of defendant, Aurora Bairan, in a divorce proceeding. Defendant filed a counterclaim and third-party claim alleging fraud and malpractice.

On the basis of our decision in Puder v. Beuchel, 362 N.J. Super. 479 (App. Div. 2003), the trial court initially denied the summary judgment motion of plaintiff and third-party defendants addressed to the fraud and malpractice claims. Subsequently, on the basis of the Supreme Court's decision in Puder, reported at 183 N.J. 428 (2005), overruling our determination, the trial court granted a subsequent motion for summary judgment for the reasons articulated in a written opinion dated October 11, 2005. Thereafter, plaintiff's fee claim was addressed and decided, with a judgment entered in the amount of $33,520.99.

In this appeal, defendant argues that "[t]he trial court acted correctly in [initially] denying summary judgment[,]" that the Supreme Court's holding in Puder "does not impact [this] litigation[,]" and that genuine issues of material fact existed regarding "[t]he veracity of third-party defendants[,]" therefore precluding summary judgment. See Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). Although the notice of appeal subsumes the judgment on the fee claim as well as the summary judgment dismissal of the counterclaim and third-party claim for fraud and malpractice, defendant's brief does not address the judgment on the fee claim. Any challenge to that aspect of the trial court's determinations is, therefore, deemed waived. See Pressler, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2006).

We have analyzed the record in the light of the written and oral arguments advanced by the parties and prevailing legal standards. We adopt the procedural history and the depiction of the parties' positions as set out in Judge De La Cruz's written opinion; and we discern no merit in defendant's challenge to the rationale Judge De La Cruz articulated as the basis of her decision, especially in the determination that the Supreme Court's decision in Puder governs the outcome of this case. We affirm substantially for the reasons set out in that opinion.

Affirmed.

20070601

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