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Mulderig v. Estate of Saba

February 25, 2009

KATHLEEN A. MULDERIG AND DENISE L. MULDERIG, PLAINTIFFS-APPELLANTS,
v.
THE ESTATE OF EDUARDO SABA, ROSS ESTATES, INC., A BVI CORPORATION, AND SIXTH AVENUE GARDENS, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1158-99.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 2, 2009

Before Judges Carchman and Simonelli.

Plaintiffs Kathleen A. Mulderig and Denise L. Mulderig appeal from the trial court's decision on limited remand that they failed to show that evidence obtained post-trial was "newly discovered evidence." We affirm.

We summarize the facts from the record. Plaintiffs were tenants in a condominium located in Deal (the condo). Ivor Braka (Braka), a principal of defendant Sixth Avenue Gardens (Sixth Avenue), owned the condo. In July 1997, Braka transferred title of the condo to defendant Ross Estates, Inc. (Ross Estates). Eduardo Saba, a business partner of Braka, was a principal of Ross Estates.*fn1

Braka notified plaintiffs that they had to vacate the condo because Saba wanted to occupy it. After plaintiffs failed to do so, Ross Estates served a valid Notice to Quit on or about September 29, 1997.

Prior to the institution of an eviction action, the parties entered into a settlement agreement. Apparently due to a typographical error, the landlord named in the settlement agreement was "D.B. Ross Estates." Nevertheless, plaintiffs agreed to vacate the condo by November 30, 1997, in exchange for payment of $2562.50 and permission to remain in the condo rent-free for October and November 1997.

In connection with the settlement, plaintiffs also executed a release to Braka and Sixth Avenue for "[a]ny and all claims arising out of the Landlord/Tenant relationship between the parties[.]" The release applies to Braka and Sixth Avenue and to "all who succeed to [their] rights and responsibilities[.]"

Plaintiffs claimed that Saba never personally occupied the condo after they vacated it. As a result, they filed a complaint against Saba, Ross Estates, D.B. Ross Estates, Braka and Sixth Avenue for damages pursuant to the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12. They also alleged equitable fraud, intentional and malicious conduct and conspiracy. After Saba died, his estate was substituted as a defendant. Plaintiffs' claims against Braka were dismissed on summary judgment pursuant to the release.

After a nine-day bench trial,*fn2 Judge Coogan found that the settlement agreement and release barred plaintiffs' claims. He concluded that "[t]here can be no confusion here and, most importantly, no escaping the plain meaning of [the settlement agreement and release], which is that plaintiffs were entering into, both voluntarily and knowingly, a global settlement of their differences with the landlord of [the condo], whomever that landlord was."

The judge also addressed the merits of plaintiffs' anti-eviction claims, concluding that they did not prove that Saba arbitrarily failed to personally occupy the condo and permitted occupancy by another tenant. N.J.S.A. 2A:18-61.1a.

As to plaintiffs' remaining claims, the judge found credible Braka's testimony about his relationship with Saba and the reasons for transferring title of condo to the Ross Estates. The judge concluded that the transfer was "a completely aboveboard transaction. It was not done to deceive the plaintiffs; it was not done as a fiction to oust the plaintiffs from their tenancy." (Emphasis original.) Finding plaintiffs' testimony not credible, the judge also concluded that they did not establish legal and equitable fraud, intentional and malicious conduct or conspiracy.

Finally, the judge dismissed the claims against Saba's estate, finding that Saba never individually owned the condo and that plaintiffs "offered no evidence to indicate culpability/liability against the [e]state nor could they as a matter of law." Judgment ...


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