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Moshe L. Singer and Shraga Schorr v. Michael Crain

January 12, 2011

MOSHE L. SINGER AND SHRAGA SCHORR, PLAINTIFFS-RESPONDENTS,
v.
MICHAEL CRAIN, DEFENDANT-RESPONDENT, AND OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5503-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: December 15, 2010

Before Judges Fisher, Simonelli and Fasciale.

This case involves a dispute between a title insurer, an insured, and a potential purchaser of residential property. Defendant Old Republic National Title Insurance Company (Old Republic) appeals from a judgment entered against it. Old Republic does not dispute the amount of the judgment, but contends that the motion judge erred by disposing of liability summarily. We agree and reverse.

Plaintiffs Moshe L. Singer and Shraga Schoor (Singer) own property located in Highlands. Old Republic issued a title insurance policy for the property. Singer contracted to sell the property to Michael Crain. Crain refused to close title because his title search uncovered a riparian/tidelands claim in favor of the State of New Jersey. Singer allegedly*fn1 notified Old Republic of the potential defect in title.

Singer filed a complaint against Crain and Old Republic. Singer alleged that Crain breached the contract of sale, and that Old Republic failed to uncover the tidelands claim and quiet title. Singer moved for a declaratory judgment that Old Republic "is liable to [Singer] for actual damages [Singer] incurred pursuant to the parties' agreement." Crain cross-moved for summary judgment and argued that he properly canceled the contract of sale because title was defective.

The motion judge heard oral argument, dismissed the complaint against Crain, and issued an order declaring that Old Republic was liable to Singer "as a result of [Old Republic's] failure to disclose the existence [of] a . . . [t]idelands claim." After the judge disposed of the liability issues, Singer and Old Republic reached an agreement concerning the amount of damages.

On appeal, Old Republic argues that the judge erred by (1) declaring it liable to Singer under negligence principles, and (2) concluding it breached its contract of title insurance with Singer. Old Republic also contends that the judge misconstrued language in the contract of sale and erred by granting summary judgment to Crain.

When reviewing a grant of summary judgment, we employ the same legal standards used by the motion judge. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated that there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). We view the evidence in the light most favorable to the non-moving party and analyze whether the moving party was entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 529 (1995). We accord no deference to the motion judge's conclusions on issues of law, Manalapan Realty, L.P. v. Township Committee of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Spring Creek, supra, 399 N.J. Super. at 180; Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).

We begin by addressing defendant's argument that the judge erred by granting summary judgment to Crain. The motion judge determined that Crain had the right to refuse to close title because paragraph 5(d) of the contract of sale provides in part that:

Buyer does not have to complete the purchase, however, if any easement, restriction or facts disclosed by an accurate survey would substantially interfere with the use of the Property for residential purposes.

The motion judge did not make findings of fact concerning whether the tidelands claim constituted substantial interference with the use of the property for residential purposes. Instead, the judge merely stated:

And I understand the distinction between having a substantial interference with the use of the property for residential purposes and interfering with the ownership of the property. But you know, ...


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