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Jobar Realty, Co., Inc. and Joseph Ponzio, Jr v. Steven R. Tombalakian

March 26, 2012

JOBAR REALTY, CO., INC. AND JOSEPH PONZIO, JR., PLAINTIFFS-APPELLANTS,
v.
STEVEN R. TOMBALAKIAN, ESQ. AND PODVEY, MEANOR, CATENACCI, HILDNER, COCOZIELLO & CHATTMAN, P.C., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0588-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 13, 2011

Before Judges Messano, Espinosa and Kennedy.

This is a legal malpractice action brought by Joseph Ponzio, Jr. (plaintiff) and his company, Jobar Realty Co., Inc.,*fn1 against Steven R. Tombalakian (Tombalakian) and his law firm, Podvey, Meanor, Catenacci, Hildner, Cocoziello & Chattman, P.C. (Podvey, and collectively, defendants). Ponzio appeals from the grant of summary judgment to defendants dismissing his complaint. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

I.

The following facts are gleaned from the motion record and our prior opinion, which preceded defendants' motion for summary judgment. Jobar Realty, Inc. v. Ryan, No. A-3451-06 (App. Div. Dec. 21, 2007), certif. denied, 195 N.J. 420 (2008).

Plaintiff owned a small strip mall in Fanwood. In 2002, he entered into a contract to sell the property. Pursuant to the contract's terms, plaintiff placed $10,000 in escrow and was required to provide the buyer with "all environmental clearance documents[,]" including a no further action letter (NFA) from the New Jersey Department of Environmental Protection (DEP) "within six months after closing."

Plaintiff retained Thomas G. Aljian, an attorney employed by Podvey, to represent him "with regard to . . . environmental and related matters concerning" the property. Aljian filed a proposed Memorandum of Agreement with the DEP, which is not contained in the record. Aljian also suggested that plaintiff "go[] after" one of his former tenants, a dry-cleaning business, Robert's Cleaners, owned by Eleanor Ryan (Ryan), whose husband had recently died. Knowing Ryan was ill and believing she did not have insurance,*fn2 plaintiff told Aljian that he would be satisfied if he could obtain $15,000 to $25,000 from Ryan to contribute to environmental remediation expenses, which had already cost $31,000.

In February 2003, Aljian wrote Ryan and advised of plaintiff's desire "to recover the costs of the environmental cleanup." He requested that Ryan contact her insurance company and place it on notice of plaintiff's claim. Aljian thereafter communicated with Ryan's attorney, Carol A. Gross, who advised that she was unsure about any available coverage. On March 21, 2003, however, Ryan's insurance company, The Hartford (Hartford), informed Aljian that it had "written some general liability policies for Robert's Cleaners and [was] presently investigating [the] matter under a reservation of rights." Thereafter, Hartford did not communicate with Podvey regarding the claim. Plaintiff certified that Aljian informed him that Ryan had no insurance and never discussed the March 21 letter.

Aljian entered into settlement negotiations with Gross. In October 2003, Aljian enlisted Tombalakian to continue these discussions, and plaintiff was copied on correspondence from Tombalakian to Gross regarding same. On February 23, 2004, Gross forwarded a $14,510 settlement proposal and noted that her "final offer assumes . . . we can reach a prompt resolution on the wording of settlement documents, which must include no admission of liability by our client and a full release and indemnification from your client."

In an extensive email to plaintiff that enclosed Gross's letter, Tombalakian explained that while Ryan "ha[d] more than doubled her offer to $14,510, this [was] still below our 'final' demand of $21,000." He further advised plaintiff to "[t]ake a few moments and review the attached letter from Gross, where she disputes some of our costs." Tombalakian also wrote, "Since I know you are sick and tired of this effort leading nowhere, we can either keep at this, or pull the trigger and initiate a law suit against Eleanor Ryan." Tombalakian cautioned, however, that a lawsuit would prove costly.

In his reply to the email, plaintiff reiterated that he would be "very happy to settle at $21,000, get [his] approval from [the DEP], and move on." Ultimately, Tombalakian negotiated and conveyed to plaintiff a $21,000 settlement offer from Ryan. Plaintiff responded in an email, calling the settlement "[g]reat news!" Tombalakian forwarded plaintiff a draft of the settlement, including releases and indemnifications.*fn3

In an email sent May 28, plaintiff asked Tombalakian to acquire the settlement money as soon as possible so he could pay off his "interest accruing debt." That same day, Tombalakian told plaintiff that Gross had informed him that "Ryan's insurance company will be paying the $21,000 settlement," and that Hartford's attorneys needed to review the settlement documents.*fn4 Plaintiff responded that he was "never told insurance was paying for [the settlement]," the insurance issue was "suppose[d] to be looked into long long long long [sic] ago," and he had "approached this differently thinking [Ryan] was on the hook for all of the money."

On June 21, Aljian responded to an earlier letter in which plaintiff expressed concern with Tombalakian's handling of his case and that he had not received the NFA from the DEP. On August 31, Gross sent a final draft of the ...


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