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Berk & Berk at Cherry Tree, LLC v. Kaskey

April 13, 2010

BERK & BERK AT CHERRY TREE, LLC, PLAINTIFF-APPELLANT,
v.
BRAVERMAN KASKEY, P.C., JOHN E. KASKEY, DAVID L. BRAVERMAN, ROBERT C. DANIELS, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4917-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 3, 2010

Before Judges Payne and Waugh.

Plaintiff Berk & Berk at Cherry Tree, LLC (Berk), appeals the dismissal of its complaint against defendants Braverman Kaskey, P.C. (BK), John E. Kaskey, David L. Braverman, and Robert C. Daniels. We reverse.

I.

The following facts and procedural history inform our decision on this appeal.

In 2003, Berk entered into a lease with Braverman Daniels Kaskey, Ltd. (BDK), a law firm, for office space located at the Cherry Tree Corporate Center (Cherry Tree) in Cherry Hill. BDK, which had its principal law office in Philadelphia, used the Cherry Tree office for its New Jersey practice. In a letter dated August 31, 2005, BDK informed Berk that it would surrender possession of the property because of the "termination of BDK's operations as of July 1, 2005."

On September 8, 2005, Braverman and Kaskey formed BK and continued their joint practice of law. At the same time, Daniels left private practice to assume judicial office in Pennsylvania.

On September 30, 2005, Berk filed a complaint against BDK, seeking damages for breach of the lease. After receiving permission to serve BDK in Philadelphia by mail, Berk eventually obtained a default judgment against BDK in the amount of $137,297.32.

On March 28, 2007, Berk moved for leave to reopen the case against BDK to assert claims against BK, as BDK's successor firm, and the individual BDK members. BDK opposed the motion, and Braverman personally appeared at oral argument on April 27, 2007, to argue in opposition. Berk, however, did not appear at oral argument. The motion judge denied the motion, finding that the "[o]ld law firm was still active and [that Berk] knew the principals when he filed the original lawsuit." Berk did not appeal that decision.

On September 28, 2008, Berk filed the present action against BK and the individual defendants. Berk, which had apparently re-leased the offices and partially mitigated its damages, claimed that $76,961.00, plus post-judgment interest, was then due on the judgment against BDK. It sought to collect that amount from BK and the former BDK members under three legal theories.

The first count of Berk's complaint stated a claim for successor liability, asserting that BDK's assets were transferred to BK, and that "BK is a mere continuation of BDK, or a successor in interest." That count further alleged that BK was created by Braverman and Kaskey to "escape" responsibility for BDK's debts and liabilities, including the amount owed to Berk.

The second count of the complaint alleged that defendants violated the Uniform Fraudulent Transfer Act (UFTA), N.J.S.A. 25:2-20 to -34, by transferring "most or all" of BDK's assets to BK, causing BDK to become insolvent. The second count also alleged that Daniels, Braverman, and Kaskey facilitated the transfer. The third count sought to pierce BDK's corporate veil, based upon the conduct of Daniels, Braverman, and Kaskey outlined ...


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