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City of Jersey City, A Municipal Corporation of the State of New Jersey v. Liberty Storage

January 20, 2011

CITY OF JERSEY CITY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF,
v.
LIBERTY STORAGE, LLC, A NEW JERSEY LIMITED LIABILITY COMPANY, DEFENDANT-RESPONDENT, AND STERLING CAPITAL, LLC, A NEW JERSEY LIMITED LIABILITY COMPANY,
METRO REALTY CORP., A NEW JERSEY CORPORATION, NVE BANK, LAKELAND BANK, GORTEX CAPITAL, LLC, A NEW JERSEY LIMITED LIABILITY COMPANY,
PRIVATE CAPITAL SERVICES, LLC A NEW JERSEY LIMITED LIABILITY COMPANY, G.X.R. AUTO BODY CORP., A NEW JERSEY CORPORATION,
GREENBERG PROPERTY, LLC, A NEW JERSEY LIMITED LIABILITY COMPANY,
ARNOLD G. SHURKIN; NACIREMA ENVIRONMENTAL SERVICES COMPANY, INC.,
CBS OUTDOOR, INC., A DELAWARE CORPORATION,
STATE OF NEW JERSEY, JERSEY CITY MUNICIPAL UTILITIES AUTHORITY,
A BODY CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY AND
JOHNSON ELECTRIC, INC., A NEW JERSEY CORPORATION, DEFENDANTS.
IMPACT REALTY ASSOCIATES, INC., APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5422-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 14, 2010

Before Judges Graves and Messano.

Impact Realty (Impact) appeals from the denial of its motion to intervene in a condemnation action brought by the City of Jersey City (the City) against numerous defendants, including Liberty Storage LLC and Sterling Capital LLC (collectively, Liberty).*fn1 Impact contends that it satisfied the requirements of Rule 4:33-1 (Intervention as of Right), or, alternatively, that the Law Division judge mistakenly exercised his discretion pursuant to Rule 4:33-2 (Permissive Intervention) by denying its motion. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

For purposes of this appeal, we accept the allegations contained in the certifications supporting Impact's motion to intervene and the pleading that accompanied it. Impact is a licensed real estate broker; Liberty owns certain property in Jersey City designated as Block 1510, Lots 0000X, 0000Y, and 00029 (the property).*fn2 Impact and Liberty entered into an "Open Listing Realty Agreement" (the agreement) in September 2008.*fn3

Pursuant to its terms, Liberty agreed to pay Impact 5% of "the sale price should [Impact] find a purchaser ready, willing and able to pay for the property or such other sum as may be accepted by" Liberty. The agreement specifically provided that Impact was authorized "to submit and pursue the interests of [the City] to consider purchasing the . . . property," and it also contained a non-exclusivity clause that permitted Liberty to find its own purchaser and list the property with other brokers.

In his certification supporting the motion to intervene, Robert Pimienta, Impact's president, alleged that Liberty knew his company "had a working business relationship with [the City]," and that Impact "secured [the City] as a ready, willing purchaser able to pay for the property." Pimienta further alleged that Impact "work[ed] vigorously" to obtain environmental information and "to resolve other issues in order to consummate a deal between" Liberty and the City.

In December 2008, the City's outside counsel advised Liberty of the municipality's "consideration [of the property] for acquisition" under the Eminent Domain Act (the EDA), N.J.S.A. 20:3-1 to -50. Pimienta objected to Liberty's "scheme to attempt to avoid paying Impact its commission on the transaction." However, apparently in April 2009, Liberty offered to sell the property to the City for $24,125,000. Attached to Impact's counsel's certification was a letter from Liberty's attorney to the City's corporation counsel setting forth the purchase price and additional terms.

Pimienta further alleged that Impact demanded its commission but Liberty refused to pay. The motion to intervene was accompanied by a proposed pleading in which Impact asserted claims of breach of contract, breach of the covenant of good faith and fair dealing, quantum meruit, unjust enrichment, and fraud against Liberty.

It suffices to say that Liberty's opposing certification took issue with Pimienta's characterization of the facts. Liberty noted that "[d]espite . . . extended negotiations, [the City] would not agree to [its] terms of sale." We note that there were indeed significant details that the parties attempted to negotiate other than the purchase price, including the costs of environmental remediation, satisfaction of existing mortgages and relocation costs, among other things. In his reply certification, Pimienta emphasized his active involvement in negotiating these issues, and Liberty's attempts to reduce any commission due to Impact throughout the negotiations.

On October 30, 2009, the City filed a declaration of taking for the property alleging that "just compensation" based upon appraisals was $19,167,000.*fn4 See N.J.S.A. 20:3-17. On January 5, 2010, the Law Division judge entered an order vesting the City with title to the property pursuant to the EDA effective January 31, 2010.

On April 30, 2010, the judge denied Impact's motion to intervene. As stated in his hand-written notes on the order, the judge determined:

Impact . . . seeks to recover a real estate commission from the defendant Liberty[/Sterling]. Such a claim is not germane to the condemnation action and can/should be brought in a separate complaint alleging this discrete cause of action. This is ...


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