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Eitz Chaim Foundation v. Beth Sholom Reform Temple and Temple Ner Tamid

May 17, 2011

EITZ CHAIM FOUNDATION, PLAINTIFF-APPELLANT,
v.
BETH SHOLOM REFORM TEMPLE AND TEMPLE NER TAMID, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-41491-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 11, 2011

Before Judges Grall and LeWinn.

Plaintiff Eitz Chaim Foundation appeals from orders dismissing its complaint without prejudice for failure to provide discovery, denying plaintiff's motion to restore the complaint and dismissing it with prejudice on cross-motion of defendants Beth Sholom Reform Temple (Beth Sholom) and Temple Ner Tamid. R. 4:23-5(a)(1)-(2). Finding no reasonable ground for confusion about plaintiff's discovery obligation, no bona fide dispute as to plaintiff's non-compliance, no exceptional circumstances and no abuse of the judge's discretion, we affirm. Ibid.; St. James AME Dev. v. Jersey City, 403 N.J. Super. 480, 485-86 (App. Div. 2008); Cooper v. Consol. Rail Corp., 391 N.J. Super. 17, 22-23 (App. Div. 2007).

The underlying dispute involves a debt on a series of loans from plaintiff to Beth Sholom made during the period from July 2005 through July 2009. Plaintiff and Beth Sholom also entered into a contract pursuant to which plaintiff purchased real estate from them. The parties intended to resolve the amount due on the several loans at closing by way of credit against the amount due from plaintiff. Temple Ner Tamid was interested in the real estate transaction because of its agreement to consolidate with Beth Sholom and accept all of Beth Sholom's assets. Accordingly, Temple Ner Tamid attended the closing and received the net proceeds from the sale of Beth Sholom's real property.

On August 11, 2009, in connection with the closing on the real estate transaction, Chaim Wolfe, on behalf of plaintiff, executed an acknowledgement certifying that "all loans and debts owed by [Beth Sholom] to [plaintiff] are paid in full based upon the credit in the amount of $581,158.02, which was provided to [plaintiff] in the Settlement Statement for the sale" of the property. On August 20, 2009, plaintiff sent an email advising Beth Sholom of a $12,000 error in the loan amount used at closing, which should have been $542,000, not $530,000. According to plaintiff, the contract for purchase and sale of the property provides for subsequent correction of any error in the amount paid at closing.*fn1 When plaintiff advised Temple Ner Tamid of the $12,000 error in November 2009, Temple Ner Tamid declined to authorize the $12,000 payment.

Consequently, plaintiff filed this complaint in December 2009. Defendants answered in February 2010, asserting reliance on an "accord and satisfaction," and Temple Ner Tamid counterclaimed, alleging malicious prosecution.

On March 4, 2010, defendants served a request for production of documents within sixty days. The following were among defendants' requests:

3. A copy of each and every transaction between the plaintiff and [Beth Sholom] in the six years preceding the filing of this

[c]omplaint; including, but not limited to, all payment memoranda, checks, deposit slips, [etc.].

4. As to each transaction between the plaintiff and defendant, [Beth Sholom], annex hereto a true copy of each and every financial statement of the plaintiff which reflects the transactions by and between the plaintiff and [Beth Sholom].

5. Annex hereto a copy of each and every financial statement issued by or maintained by the plaintiff during the six years preceding the filing of this [c]omplaint.

On March 25, 2010, plaintiff moved to dismiss Temple Ner Tamid's counterclaim and disqualify defendants' counsel on the ground that he was a necessary witness. On April 30, 2010, the judge heard argument and entered an order granting the request to disqualify defendants' attorney and ...


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