On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-61-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2008
Before Judges Collester and C.L. Miniman.
Defendants G.H.K. Jung and Man Nim, husband and wife, appeal the entry of summary judgment in favor of plaintiff Nissan Perla in the amount of $300,000, which represented his initial deposit under a contract for the purchase of real property owned by defendants located at 2169 Lemoine Avenue in the City of Fort Lee.
Plaintiff and defendant had known each other for nearly twenty years through their business dealings in the diamond industry when they entered into negotiations in 2005 for the purchase of defendant's Fort Lee property. Plaintiff's intention was to construct a building with eighty apartment units. However, since the property was zoned as a C-3 Limited Business District that did not permit such a use, re-zoning was essential to plaintiff's plan to develop the property.
During the course of negotiations, plaintiff was represented by New York counsel, Adam B. Bayroff, Esq., and defendants by a mortgage broker named Rodney Hilton Brown. On June 28, 2005, Brown sent Bayroff a letter called a "term sheet" for the purchase of the property for $8 million with $800,000 to be paid as a deposit when the contract was signed. The term sheet also set special conditions for the purchase, stating the sale was to be:
a. As is, where is, but seller will introduce Buyer to Fort Lee Land Use Authority to confirm ability to construct 80 apartment units. Bayroff then prepared a purchase and sale agreement and sent it to Brown on July 8, 2005. The purchase price remained $8 million, but the amount of the deposit and the schedule of payments was changed as follows:
(a) Fifty Thousand and 00/100 Dollars ($50,000.00) (the "Initial Deposit") [to be paid] upon the execution of this Agreement, by delivery of a check, subject to collection, payable to the order of ___________________________ ("Escrow Agent");
(b) One Hundred Thousand and 00/100 Dollars ($100,000.00) (the "Second Deposit") within ten (10) business days after receiving the Apartment Approval (as hereinafter defined), payable to the order of Escrow Agent;
(c) Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00 (the "Third Deposit") after receiving an Acceptable Phase I Report (as hereinafter defined), payable to the Escrow Agent; and
(d) Seven Million Six Hundred Thousand and 00/100 Dollars [($7,600,000.00)] at the Closing.
The draft agreement further added in Article 14.01 the following:
Notwithstanding anything to the contrary contained in this Agreement, this Agreement shall have no force and effect and not be binding on Purchaser unless and until the following conditions ...