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Zvi Markowitz v. Magic Touch

February 15, 2012

ZVI MARKOWITZ, PLAINTIFF-APPELLANT,
v.
MAGIC TOUCH, INC., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5423-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 1, 2012

Before Judges Fuentes, Harris, and Koblitz.

Plaintiff Zvi Markowitz appeals from a final judgment of the Law Division dismissing his specific performance complaint following a bench trial. We affirm.

I.

We derive the following facts from the trial record. On June 10, 2006, Markowitz entered into an Agreement of Sale (the agreement) to purchase defendant Magic Touch Inc.'s car wash located on Route 70 in Cherry Hill. Magic Touch operated the business at that location pursuant to an assignment of lease first executed in January 2001.

The agreement provided that Markowitz would acquire most, but not all, of Magic Touch's assets. It further contemplated that the lease would be assigned to Markowitz for the remainder of its term. The agreed purchase price was initially set at $1,625,000. The parties agreed to a closing date of August 9, 2006, memorializing the following to govern their time of performance:

The Closing Date and all other dates and times referred to for the performance of any of the obligations of either party under this Agreement are understood to be of the essence of this Agreement and are binding.

The Closing Date is not extended by any other provision of this Agreement and may only be extended by the mutual written agreement of the parties.

The agreement also stated that if Markowitz performed all of his "covenants and conditions" prior to closing, he could "pursue any action at law or in equity, including, but not limited to, an action for specific performance." Reciprocally, in the event that Markowitz breached the agreement and Magic Touch performed all of its contractual obligations, Magic Touch would keep the $50,000 escrow deposit as liquidated damages.

Following the expiration of the agreement's twenty-one day due diligence period, the parties proceeded to amend the agreement on August 2, 2006, which made a $25,000 reduction to the purchase price and rescheduled the closing date -- still subject to time of the essence performance -- to September 15, 2006.

Shortly thereafter, Markowitz learned that Magic Touch had commenced litigation in the Chancery Division, Camden Vicinage, against its landlord to ensure that the lease would not be terminated, and remain assignable. The landlord filed a counterclaim seeking remedies for alleged environmental contamination on the subject property. Markowitz testified that he and a representative of Magic Touch agreed that the closing would be delayed until the litigation was resolved, but nothing was ever memorialized in a written instrument.

On September 22, 2006, the Chancery Division determined that the subject lease could be assigned, ruling further that the obligation to remediate any environmental contamination on the property would lie with "either the buyer or seller or both" because the obligation "[ran] with the land." Following this decision, Markowitz became concerned that he would be obliged to remediate the property, stating, "and then, if ...


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