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Vieser v. Leventhal

August 25, 2010

JAIME VIESER, PLAINTIFF-RESPONDENT,
v.
ALAN LEVENTHAL AND DENISE LEVENTHAL, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2565-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 9, 2010

Dismissed June 9, 2010

Reinstated July 28, 2010

Before Judges Carchman and Ashrafi.

By opinion dated June 9, 2010, we dismissed the appeal in this matter without prejudice because it was not from a final judgment disposing of all claims against all parties. Vieser v. Leventhal, Docket No. A-4526-08T2 (App. Div. June 9, 2010). See R. 2:2-3(a); Vitanza v. James, 397 N.J. Super. 516, 518 (App. Div. 2008); Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 550 (App. Div. 2007). We incorporate the procedural history stated in our June 9, 2010 opinion for purposes of this decision.

By order dated July 28, 2010, we granted the motion of defendants Alan and Denise Leventhal, consented to by plaintiff Jaime Vieser, to reinstate the appeal because the parties have corrected the jurisdictional defect in accordance with direction we provided in our prior opinion. Plaintiff and defendants have now stipulated to dismissal of all remaining claims between themselves with prejudice, adding a proviso that plaintiff shall be permitted to reinstate all his claims for compensatory damages if we reverse the granting of partial summary judgment in his favor.

The dispute is about return of deposit money on a contract to sell a home. The Leventhals, as the sellers, appeal from partial summary judgment declaring that Vieser, who was the buyer, had a right to cancel their contract for the sale of the Leventhals' home because of radon testing results and that Vieser was entitled to refund of his deposit money. We now affirm that judgment.

I.

The summary judgment record reveals the following relevant facts.

In March 2005, Vieser signed an offer to purchase from the Leventhals a house in Mendham, New Jersey, for $4,475,000.*fn1

Vieser paid a deposit of $10,000 with his offer of purchase. After informal negotiations, the Leventhals signed a revised offer on May 6, 2005, subject to attorney review. In accordance with the agreement, Vieser deposited another $394,000 with his own attorney to be held in escrow pending closing on the sale.

On May 6, 2005, Vieser's attorney, Laura S. Munzer, wrote to the Leventhals' attorney, Andrew Mainardi, Jr., disapproving the contract and proposing modifications. Paragraphs three, four, and five of Munzer's modifications gave the buyer a right to cancel the contract based respectively on ...


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