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Greenblatt v. Sulovski


October 14, 2010


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6678-09.

Per curiam.


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 separate application, but on January 11, 2010, the judge denied that motion "for the reasons set forth on the record on" December 4, 2009.

On appeal, plaintiff raises the following claims: 1) the grant of summary judgment was improper as plaintiff "can prove that he sustained a permanent injury under the LAD Act and the Patman Act"; 2) the trial court should have addressed the issue of jurisdiction raised by plaintiff; 3) because the 2009 complaint alleged "a continuing or repeated injury," thereby triggering the "continuing wrong doctrine," the judge erred when she concluded that the statute of limitations had already run; 4) when a complaint invokes several causes of action, each is subject "to a distinct statute of limitations"; 5) the judge erred by failing to address and apply the doctrines of equitable estoppel and equitable tolling; 6) the running of the statute of limitations in cases of fraud may be suspended "by a repetition or continuing of the false representations which keeps the defrauded person in ignorance of the fraud"; 7) res judicata did not apply because there was no final judgment by a court of competent jurisdiction, and no identity of issues, parties or cause of action; and 8) the judge's reliance on the entire controversy doctrine was error.


We review the trial court's grant of summary judgment de novo. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Employing the same standard the trial court uses, ibid., we review the record to determine whether there are material factual disputes and, if not, whether the undisputed facts viewed in the light most favorable to plaintiff nonetheless entitle defendants to judgment as a matter of law. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

We turn first to plaintiff's argument that the judge erred when she concluded that his August 2009 complaint was barred by the applicable statute of limitations. N.J.S.A. 2A:14-1 establishes a six-year statute of limitations for damage to property or for breach of contract. It provides:

Every action at law . . . for any tortious injury to . . . personal property, for taking, detaining, or converting personal property [or] for any tortious injury to the rights of another not stated in sections 2A:14-2 [personal injury] and 2A:14-3 [libel or slander] of this Title, or for recovery upon a contractual claim or liability . . . shall be commenced within 6 years next after the cause of any such action shall have accrued.

The statute of limitations for personal injury is two years. N.J.S.A. 2A:14-2. Thus, plaintiff's LAD claim was governed by a two-year statute of limitations, see Montells v. Haynes, 133 N.J. 282, 292-93 (1993), and plaintiff's remaining claims, for the undervaluation of his property, would be governed by the six-year statute of limitations established by N.J.S.A. 2A:14-1. According to plaintiff's complaint, defendants appraised the jewelry in May 1999. As such, the statute of limitations began to run from this date and expired six years later in May 2005. Plaintiff filed his complaint in August 2009, over ten years from the date Sulovski completed the appraisal. Thus, plaintiff's complaint is barred by the statute of limitations absent equitable tolling or a showing that the cause of action accrued at a later date.

Plaintiff asserts that: defendants are equitably estopped from asserting the running of the statute of limitations; defendants engaged in fraudulent conduct thereby creating an equitable tolling of the applicable statute of limitations; he could not have been expected to discover defendants' malfeasance at the time it first occurred; and because defendants' conduct constituted a continuing wrong, the statute did not begin to run until the last act complained of occurred. We review these claims in that order.

Equitable estoppel applies when a party makes an intentional misrepresentation knowing that the other party would rely upon that false statement, and the opposing party did so to his detriment. Scibek v. Longette, 339 N.J. Super. 72, 84 (App. Div. 2001). Plaintiff's equitable estoppel claim fails because he did not rely on the appraisal submitted by defendants. In fact, he filed a complaint as early as 2002 in which he asserted that the appraisal had significantly undervalued the jewelry. Thus, the doctrine of equitable estoppel is inapplicable.

Nor does equitable tolling enable plaintiff to survive defendants' statute of limitations defense. Equitable tolling applies where "'a plaintiff is misled . . . and as a result fails to act within the prescribed time limit.'" Bustamante v. Borough of Paramus, 413 N.J. Super. 276, 299 (App. Div. 2010) (quoting Villalobos v. Fava, 342 N.J. Super. 38, 50 (App. Div.), certif. denied, 170 N.J. 210 (2001)). Plaintiff does not indicate how he was misled such that he was unable to file this claim within the statute of limitations. Nor is there any certification from plaintiff in the record which would trigger other forms of equitable tolling, such as if defendants had left the state and long-arm jurisdiction could not be effectuated. See N.J.S.A. 2A:14-22(a). We conclude equitable tolling is not available to plaintiff.

Plaintiff also relies upon the discovery rule. The discovery rule "delays the accrual of a cause of action until 'the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim.'" Baird v. Am. Med. Optics, 155 N.J. 54, 66 (1998) (quoting Lopez v. Swyer, 62 N.J. 267, 272 (1973)). The discovery rule is a rule of equity and the burden of proof rests "upon the party claiming indulgence of the rule." Lopez, supra, 62 N.J. at 273, 276.

As we have already noted, plaintiff knew of defendants' alleged complicity in the undervaluing of the jewelry as early as 2002, because he so alleged when he sued them in federal court in 2002. Even assuming that plaintiff's current claim differs to some degree from his earlier claims, in 2002 plaintiff should have discovered he had a basis for an actionable claim and thus, at the latest, the statute of limitations began to run then and expired in 2008. Plaintiff filed this action in 2009, and thus the discovery rule does not help plaintiff avoid defendants' statute of limitations defense.

Last, plaintiff points to the continuing wrong doctrine as a basis for avoiding the six-year statute of limitations. The continuing wrong doctrine applies when there is a "continual, cumulative pattern of tortious conduct." Wilson v. Wal-Mart Stores, 158 N.J. 263, 272 (1999). Broadly speaking, the statute of limitations begins to run when the offending conduct ends. Ibid. However, in this case, plaintiff has not provided any proof of a continuing wrong, nor has he pointed to any misrepresentations that kept him from learning of the alleged fraud. The basis for plaintiff's complaint is a single, finite occurrence, which occurred in May 1999, when defendant Sulovski appraised plaintiff's jewelry. Consequently, the continuing wrong doctrine is inapplicable.

Having carefully reviewed plaintiff's contentions in light of the record and applicable law, we are satisfied that the Law Division correctly determined that plaintiff's August 2009 complaint was barred by the statute of limitations. All of the exceptions to the six-year statute upon which plaintiff relies are inapplicable.

In light of that determination, we need not address the judge's additional conclusion that the complaint was barred by res judicata and the entire controversy doctrine. The motion judge correctly determined that plaintiff's complaint, filed in August 2009, was barred by the applicable statute of limitations. We thus affirm on plaintiff's appeal.


We turn to defendants' cross-appeal. As we have noted, defendants moved under the frivolous litigation statute, N.J.S.A. 2A:15-59.1(b), for an award of attorneys' fees and costs against plaintiff. That statute authorizes an award of attorneys' fees and costs when the non-prevailing party knew, or should have known, that his pleading "was without any reasonable basis in law or equity" and "could not be supported by a good faith argument for an extension, modification or reversal of existing law." N.J.S.A. 2A:15-59.1(b)(2).

When the judge denied defendants' motion for fees and costs under the frivolous litigation statute, she did so only "for the reasons already stated on the record." However, the judge's only prior reason for denying defendants' application was because defendants had not filed a separate motion. Once defendants did as the judge required, and filed a separate motion, they were entitled to a determination of their fee motion on the merits. The judge mistakenly believed she had already addressed their motion on the merits, but had not. We therefore reverse the denial of defendants' frivolous litigation motion and remand for a determination of whether defendants are entitled to an award of attorneys' fees and costs under that statute.

In their cross-appeal, defendants also maintain that because plaintiff has relentlessly and repeatedly pursued them in state and federal court, filing complaints entirely lacking in merit, they are entitled to an order enjoining plaintiff from filing any further litigation against them. See Rosenblum v. Borough of Closter, 333 N.J. Super. 385, 395-97 (App. Div. 2000) (holding that when a moving party demonstrates a long history of vexatious and frivolous filings by the adverse party, a court is authorized to issue a prior restraint on any further filings). Rosenblum requires such litigation injunction motions to be filed with the Assignment Judge, not a motion judge. Id. at 397. Therefore, the judge who heard defendants' motion for a litigation injunction should have referred the motion to the Assignment Judge, but did not. We therefore affirm the denial of defendants' injunction motion, but without prejudice to defendants' right to renew that motion before the Assignment Judge.

Affirmed on the appeal. On the cross-appeal, reversed and remanded in part and affirmed in part.

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