On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-119-07 and L-9035-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
Plaintiff NP 1300, LLC appeals from: 1) a June 4, 2009 order of the Law Division, granting defendant K.H. Cleaners, Inc.'s motion to dismiss plaintiff's complaint (Docket No. L-5439-08); and 2) a July 31, 2009 order of the same court denying plaintiff's motion to vacate a previously entered April 9, 2008 stipulation of dismissal of an earlier complaint with prejudice (Docket No. L-115-09).*fn1
These are the facts relevant to both appeals. Plaintiff owned property located at 12 South Street, New Providence (the property). In 1984, defendant, K.H. Cleaners, Inc., assumed operation of an existing dry cleaning store (the store) located on the property and had operated the store since approximately 1984, pursuant to a lease entered into with plaintiff dated October 18, 1978.*fn2 The most recent renewal of the lease was executed between the parties on November 1, 2003, for a term of five years ending on October 30, 2008. Defendant sold the store on April 12, 2008.
On January 5, 2007, plaintiff filed a three-count complaint against defendant and Kwang Han Kim, agent of K.H. Cleaners who had signed the October 18, 1978 lease, in the Law Division, asserting that defendants had caused a discharge, release, spill or disposal "of hazardous substances and/or chemical contaminants onto and/or near the Property during plaintiff's ownership of the Property resulting in soil and/or groundwater contamination." Plaintiff alleged it "has expended and expects to expend in excess of $300,000 to investigate, clean up and remove the hazardous substances and to respond to the [New Jersey Department of Environmental Protection] directives" due to defendants' actions. Plaintiff, citing N.J.S.A. 58:10-23.11g, alleged that defendants were responsible for the costs incurred in the contamination clean-up.
Plaintiff also claimed in Count Two of the complaint, that defendants had an obligation under the lease to reimburse plaintiff for all costs incurred, including interest, attorney's fees and other appropriate relief. The third count sought to uphold personal liability on Kim.
On August 17, 2007, defendant filed its answer, denying all allegations, except admitting that defendant took over the operation of the store by entering into a lease with plaintiff and that "Kwang Han Kim executed a guaranty regarding the lease . . . ."
For reasons not articulated at the time, on April 9, 2008, plaintiff executed a stipulation agreeing to dismiss the complaint with prejudice.
Seven months later, on November 12, 2008, plaintiff filed a two-count complaint against the same defendant, K.H. Cleaners, Inc.*fn3 , proffering the same allegations as it had in its previous complaint and noting that defendant is liable to plaintiff for reimbursement for costs incurred by plaintiff in investigating, cleaning and removing hazardous substances discharged by defendant. According to plaintiff, as a result of the alleged contamination and directives by the New Jersey Department of Environmental Protection, plaintiff expended over $300,000 to investigate and remediate the discharge and anticipates incurring additional expenses related to the remediation process.
Defendant moved to dismiss the second complaint arguing that plaintiff's complaint was barred by principles of res judicata and the entire controversy doctrine. The motion judge dismissed the complaint, and plaintiff appealed.*fn4
On July 9, 2009, just prior to filing its first appeal, plaintiff moved to vacate the April 9, 2008 stipulation of dismissal pursuant to R. 4:50-1. Included in support of this motion was a certification by Mr. John Rudder, plaintiff's principal, who stated that:
[i]n April, 2008, I agreed to dismiss the Complaint based upon Defendants' representations that 1. they could not locate any of their pre-1987 insurance policies. Before 1987, insurance ...