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Fritze, LLC v. Kominsky

October 21, 2009

FRITZE, LLC, PLAINTIFF-RESPONDENT,
v.
ELLIOTT KOMINSKY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. DC-2956-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 30, 2009

Before Judges Gilroy and Simonelli.

Defendant Elliott Kominsky appeals from the February 4, 2009 order granting plaintiff Fritze, LLC's, motion seeking to enforce a settlement. We affirm.

Plaintiff, a home improvement contractor, engages in the sale and installation of heating and cooling systems. In March 2003, plaintiff entered into a verbal agreement with defendant for the replacement of an air conditioning and heating system in defendant's home for the sum of $17,344. After defendant paid approximately one-half of the sales price and plaintiff completed the work, a dispute arose between the parties.

On May 19, 2006, plaintiff filed a complaint in the Special Civil Part, seeking the balance owed of $8,876, plus interest. Defendant counterclaimed, asserting that plaintiff violated the Consumer Fraud Act*fn1 by failing to: reduce the agreement to writing; obtain the necessary construction permits from the local municipality; and obtain a certificate of occupancy after completion of the work. Defendant also claimed that plaintiff performed the work in a negligent fashion.

Prior to the September 25, 2006 trial date, counsel for both parties sent separate letters to the trial court on September 21 and 22, 2006, advising that the matter had settled. However, the settlement was not placed upon the record, and the parties failed to file a stipulation of settlement or a stipulation of dismissal.

On September 29, 2006, plaintiff's counsel prepared and forwarded to defendant's counsel a proposed stipulation of settlement, under which terms defendant would pay plaintiff $8,876, by placing those funds in escrow with his attorney until such time as: 1) plaintiff filed all applications necessary to obtain the proper construction permits for the work; 2) plaintiff completed the work to the satisfaction of the municipal inspectors; and 3) the municipality issued a certificate of occupancy approving the work. The stipulation further provided that on final approval by the municipality, defendant would authorize his counsel to release the escrow funds to plaintiff.

On October 6, 2006, defendant's counsel requested that the stipulation be revised "to mention the 90-day time limit for obtaining the certificate of occupancy." Three days later, defendant's counsel requested that the stipulation be further revised to include a provision requiring plaintiff to provide defendant with a warranty on the "4th unit." On October 12, 2006, plaintiff's counsel revised the proposed stipulation and forwarded it to defendant's counsel. As to the time-limit provisions for the completion of plaintiff's obligations, the document provided:

The municipality requires that a survey be submitted with the application and the application therefore cannot be submitted until such time as defendant provides a copy of the survey to plaintiff. Once that has been accomplished, plaintiff will forthwith submit the application and will complete all required work within ninety days of receiving this survey.

The parties never signed the stipulation. Although they were in agreement that the construction permits and certificate of occupancy be obtained within a ninety-day timeframe, they remained in disagreement as to when the ninety-day period would commence. While defendant insisted they be obtained within ninety days from the date of settlement, plaintiff insisted that they be obtained within ninety days from when defendant provided him a copy of the survey. On October 24, 2006, defendant provided plaintiff with a copy of the survey.

On December 5, 2006, plaintiff's counsel inquired of defendant's counsel whether defendant had placed the settlement funds into escrow. On December 6, 2006, defendant's counsel advised that his client insisted the final certificate of occupancy be issued by the end of December 2006; and that, although defendant had not deposited the settlement funds into escrow, he would pay the amount due on issuance of the certificate of occupancy.

During the next four to five weeks, counsel exchanged correspondence primarily pertaining to defendant's obligation to arrange for a final inspection to obtain the certificate of occupancy. On January 12, 2007, plaintiff's counsel sent defendant's counsel copies of documents plaintiff had submitted to the municipality for ...


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