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Ferraro v. 347 Park Avenue

July 25, 2008

WAYNE FERRARO, PLAINTIFF-APPELLANT,
v.
347 PARK AVENUE, LLC, MILLINGTON REALTY, LLC, MARC JACOBS, INDIVIDUALLY, AND STEPHEN I. WEICHERT, ESQ., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4112-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 7, 2008

Before Judges Wefing, Parker and Koblitz.

This appeal arises from the sale of a multi-unit apartment building. Plaintiff Wayne Ferraro appeals from four orders: two entered on March 26, 2007, one dismissing the legal malpractice complaint against his closing attorney, defendant Steven I. Weichert, Esq., for failure to provide an affidavit of merit; and the other dismissing the complaint against the purchaser of the property, 347 Park Avenue LLC (Park Ave.); and two orders entered on June 6, 2007, denying reconsideration of the dismissal for each defendant and ordering $3,253 in sanctions against Ferraro's counsel for filing frivolous litigation.*fn1

Ferraro owned a nine-unit apartment building at 347 Park Avenue in Orange. On April 19, 2002, he contracted to sell the property to Millington Realty, LLC (Millington) for $280,000. Plaintiff agreed to take back a mortgage for the full purchase price. Marc Jacobs signed the contract on behalf of Millington. After entering into the contract, Millington assigned it to Park Ave. The contract indicated the property was being sold "as is." Paragraph thirteen stated in its entirety:

13. Building and Zoning Laws. The Buyer intends to use the Property as a 9 family apt. bldg. The Seller states that this use does not violate any applicable zoning ordinance building code or other law. The Seller will obtain and pay for all inspections required by law. This includes any municipal "Certificate of Occupancy."

If the Seller fails to correct any violations of law at the Seller's own expense, the Buyer may cancel this contract.*fn2

Seller will make no corrections of any violations, the property is being sold as is.

In December 2002 the sale had still not closed and Park Ave., the only remaining plaintiff, filed a chancery action for specific performance forcing the sale of the property. Ferraro retained defendant Weichert to represent him in that action. After Ferraro moved for summary judgment, Weichert, on behalf of Ferraro, negotiated a settlement. The parties entered into a stipulation of settlement on March 26, 2004.

The stipulation provided that the sale would occur for the original contract price on or before March 29, 2004. Paragraph five of the stipulation provided that:

5. Seller shall specifically be obligated to pay for abatement of all violations necessary to obtain a Certificate of Occupancy. All such monies advanced by Plaintiffs or their agents, employees or assigns shall be deducted from the purchase price before amortization of the financing agreement.

Thus, paragraph five of the stipulation of settlement directly contradicted paragraph thirteen of the original contract for sale which had called for a sale of the property "as is." Additionally, the stipulation of settlement, in paragraph ten, indicated that if Ferraro failed to adhere to any term, judgment would be entered against him upon submission of a certification by Park Ave.'s counsel.

On March 30, 2004, Weichert appeared on Ferraro's behalf to close title with a "closing authorization" signed by Ferraro. The parties entered into an escrow agreement, pending receipt of a temporary certificate of occupancy (CO) and the execution of the HUD-1 statement. Among other obligations, Ferraro was to turn over all rental security deposits for the building. The escrow agreement called for all mortgage payments to be paid into the escrow account after deduction of costs necessary for abatement of violations in connection with obtaining the final CO. Thus, both the escrow agreement and ...


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