On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6678-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2010
Before Judges Payne, Baxter and Koblitz.
Plaintiff Martin Greenblatt appeals from a December 4, 2009 Law Division order granting summary judgment to defendants Joseph Sulovski and Ski Setting/Ski Jewelers, based upon a finding that plaintiff's complaint was barred by the statute of limitations, the entire controversy doctrine and res judicata. We agree with the first reason, do not reach the remaining two, and affirm the order under review.
In their cross-appeal, defendants challenge the judge's refusal to award them legal fees and costs under the frivolous litigation statute and to enjoin plaintiff from filing any further litigation against them. As to the first issue, we agree with defendants that the judge mistakenly believed she had already denied their fee application on the merits when, in fact, she had not. We therefore remand for consideration of defendants' fee request.
Turning to defendants' request for a litigation injunction, we conclude that such requests are to be made only to the Assignment Judge. Although the judge did not deny the injunction on that basis, we nonetheless conclude that her refusal to grant such relief was appropriate due to such relief being within the exclusive province of the Assignment Judge. We thus affirm on this portion of defendants' cross-appeal, without prejudice to defendants' right to renew that application before the Assignment Judge.
In 1981, plaintiff purchased a bar from Daniel Orenberg and John Scheller, executing a promissory note obligating him to make periodic payments. Following plaintiff's default on the note, a judgment in favor of Orenberg and Scheller was entered in 1983 in the amount of $736,640. In April 1999, in satisfaction of that judgment, the Somerset County Sheriff levied on jewelry at Jay's Jewelers, a store alleged to be owned by plaintiff.
The levy prompted a lawsuit by Jay's Jewelers and Martha Greenblatt, plaintiff's wife, claiming the jewelry did not belong to plaintiff, but rather to the corporation owned by Mrs. Greenblatt. On September 30, 2002, a settlement was reached between plaintiff, Orenberg and Scheller, whereby the jewelry was split in half and one-half was credited toward the judgment against plaintiff.
Notwithstanding the September 30, 2002 settlement, on October 21, 2002, plaintiff filed suit in the United States District Court for the District of New Jersey against Orenberg, Scheller, their attorney Robert Gluck, the Sheriff of Somerset County and various deputy sheriffs, and an auctioneer. Also included as defendants were present appellants/cross-respondents, Sulovski, who appraised the jewelry after the Sheriff executed the levy, and the business of which he was the principal shareholder, Ski Setting, Inc. In the 2002 complaint, plaintiff maintained that when Sulovski appraised the levied jewelry in 1999, he appraised it at its wholesale, rather than retail, value, deliberately undervaluing the jewelry to enable the judgment creditors, Orenberg and Scheller, to maintain an unduly high judgment against him. Plaintiff also filed a complaint in the United States District Court for the Southern District of New York and in the state court in New York, making similar allegations. The last federal court complaint was dismissed in the latter part of 2003.*fn1
Plaintiff filed the present complaint on August 5, 2009. Plaintiff alleged violations of the "Patman" Act,*fn2 violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, fraud, and failure to provide him with notice that defendants were appraising the jewelry. Specifically, plaintiff contended that: the Patman Act was violated because defendants appraised the jewelry at wholesale value rather than retail value; the LAD was violated because plaintiff was allegedly unable to obtain employment as a result of the impending levy of his property, and because securing employment is a civil right, his inability to do so created a "hostile work environment"; and defendants committed fraud by submitting an appraisal document that did not account for fifty rings that were listed on the sheriff's inventory report, and by removing inventory from Jay's Jewelers and substituting jewelry of lesser value. Last, plaintiff claimed that defendants failed to provide plaintiff or his wife with advance notice of the date and time of the appraisal.
Defendants filed a motion for summary judgment, which was heard on December 4, 2009. In an oral opinion rendered at the conclusion of the motion hearing, the judge granted defendants' motion, relying on the six-year statute of limitations, res judicata and the entire controversy doctrine. In particular, as to the statute of limitations, the judge found that because the appraisal was conducted in May 1999, plaintiff's cause of action against defendants for an improper or fraudulent appraisal of the jewelry was required to be filed no later than May 2005 because the applicable statute of limitations was six years. Next, the judge determined that plaintiff's August 2009 complaint was based on the same underlying facts, with the same underlying issues as had been raised in the earlier federal litigation, and therefore the 2009 complaint was barred by res judicata and the entire controversy doctrine.
However, the judge denied defendants' request to enjoin plaintiff from filing any further litigation against them because "[t]his is too broad a request." Last, the judge denied defendants' motion for counsel fees pursuant to the frivolous litigation statute because, contrary to the requirements of Rule 1:4-8(b)(1), defendants had not filed a separate application for counsel fees. Shortly thereafter, in keeping with the judge's observation that a separate motion filing was required, defendants filed a ...