On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-199-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2011
Before Judges Reisner and Simonelli.
Plaintiff Mark Russomano appeals from a September 7, 2010 order of the Probate Part denying Mark's application to require the Estate of Gerald Russomano (Estate) to sell him a piece of property, and granting the Estate's application to evict plaintiff's garage business from the property. We affirm.
These are the most pertinent facts. Gerald Russomano operated a garage business in Long Branch with plaintiff, his son. In his will, Gerald left the garage business, known as Russomano Enterprises Corp., to plaintiff, but he left the property on which the garage business was located to his wife and three children, including Mark. Not long after Gerald's death, Russomano Enterprises Corp. entered into a "net-net-net" lease with the Estate, through its executrix, Mark's sister Debra Saley. The corporation's attorney drafted the lease. Mark signed the lease as the corporation's president.
The lease required the tenant to pay the real estate taxes on the property. The lease also gave the "tenant" the right of first refusal to buy the property for its fair market value, or for the listing price if the Estate listed the property for sale. However, the option required an "all cash" closing.
After Russomano Enterprises had failed to pay about $6000 in property taxes, and after the parties failed to reach agreement on a sale price and terms, the executrix filed an eviction action. Mark filed a Probate complaint seeking to require the Estate to sell him the property. Thereafter, the landlord-tenant action was transferred to the Probate Part. The two actions were consolidated and litigated in a bench trial.
In an oral opinion placed on the record on August 26, 2010, Judge Patricia Del Bueno Cleary found that Mark's (and the corporation's) failure to pay the taxes justified the Estate in evicting his garage business from the premises. She further found that Mark allowed the lease to expire without renewing it. She also found that Mark, through the corporation, failed to properly exercise the option to buy the property at an "all cash closing," because his offer was conditioned on the Estate taking back a mortgage. That offer was unacceptable to the Estate, which had received an offer from the City of Long Branch to buy the property. Mark filed an appeal.*fn2
Raising an issue on this appeal that he did not raise in the trial court, Mark contends that the executrix did not have standing to bring the eviction action because the individual heirs were the owners. We disagree. The will explicitly gave the executrix authority to "lease" and otherwise manage the real property of the Estate. The probate statute, N.J.S.A. 3B:10-29 and -30, also gives an executrix that power. Moreover, since the tenant was not Mark but Russomano Enterprises Corp., the eviction action did not "oust" Mark from the property.
Mark's additional appellate contentions are without sufficient merit to warrant discussion, beyond the following comments. See R. 2:11-3(e)(1)(E). Mark did not seek partition by sale of the property to an independent third party, which was the goal of the other Estate beneficiaries. See N.J.S.A. 2A:56-2. Rather, he sought to require the Estate to sell the property to him as a beneficiary or, in the alternative, to enforce specific performance of his corporation's right to buy the property under the terms of the lease. However, he was not ready, willing and able to pay for the property. See Stamato v. Agamie, 24 N.J. 309, 316-17 (1957). In fact, he asked the Estate to take back a mortgage. Likewise, the corporation failed to effectively exercise the lease option, which required an "all cash" closing. See Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 223 ...