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Sivaraman Anabarasan v. 53-53 Palisades Hudson Associates

April 4, 2012

SIVARAMAN ANABARASAN, PLAINTIFF-RESPONDENT,
v.
53-53 PALISADES HUDSON ASSOCIATES, LLC, LOUIS BERTINATO, INDIVIDUALLY AND AS PRINCIPAL OF 53-53 PALISADES HUDSON, LLC, THE COLAO GROUP, LLC, KENNETH M. COLAO, INDIVIDUALLY AND AS PRINCIPAL OF THE COLAO GROUP, DEFENDANTS-APPELLANTS, AND VICTOR PEREZ, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-63-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 15, 2012

Before Judges Payne, Simonelli and Accurso.

This is a collection action on a guaranty. On October 20, 2006, defendant 53-54 Palisades Hudson Associates, LLC (Palisades) borrowed $400,000 for twelve months from plaintiff Sivaraman Anabarasan, at an interest rate of two and one-half percent per month. Payment was due on maturity. The debt was evidenced by a Promissory Note executed on behalf of Palisades by its member, defendant Louis Bertinato, and secured by a junior Mortgage on commercial property owned by the borrower on 53rd and 54th Streets in West New York and a joint and several Guaranty. The Guaranty was signed by Bertinato, individually and on behalf of Palisades, defendant Kenneth M. Colao, individually and on behalf of defendant The Colao Group, LLC, and defendant Victor Perez.

Palisades allegedly defaulted on the Note and plaintiff sued on the Guaranty. In his complaint, plaintiff alleged specifically that he had called the Note, that defendants had failed to make payment as required by the Note and Mortgage, that plaintiff had given notice of his intent to enforce the Guaranty and that defendants had failed to respond to that notice. Defendants the Colao Group, Kenneth Colao and Louis Bertinato (the Colao/Bertinato defendants) filed an answer claiming that they were without knowledge as to whether plaintiff had called the Note and denying that defendants had failed to make the payments required by the Note and Mortgage and that plaintiff had given notice to defendants regarding his intent to enforce the Guaranty to which defendants had failed to respond.*fn1 Palisades did not file an answer to the complaint. The parties agree that Palisades filed a voluntary petition in bankruptcy and was subsequently dismissed from the Law Division action without prejudice.

After the close of discovery, the parties cross-moved for summary judgment. On March 18, 2011, the motion judge granted plaintiff's motion and entered judgment for $400,000 on the Guaranty against Perez and each of the Colao/Bertinato defendants, as well as against Palisades and denied the Colao/Bertinato defendants' cross-motion. Pursuant to our grant of limited remand after notices of appeal were filed, the motion judge amended the March 18, 2011 order to include contractual interest of $540,000 for a total judgment of $940,000, from which defendants now appeal.

Defendants contend that plaintiff's failure to provide competent evidence on the motion of Palisades's default or any notice of default to the guarantors, precluded entry of summary judgment to plaintiff and required judgment in their favor dismissing the complaint with prejudice. Defendants also argue that summary judgment as to Palisades was inappropriate as it was a dismissed party at the time of the entry of judgment. Finally, defendants argue that plaintiff was not entitled to interest on the Note after acceleration. Plaintiff argues that entry of summary judgment in his favor was appropriate, that the motion judge properly awarded interest, that Palisades's appeal was untimely, and that the motion judge properly denied defendants' cross-motion for summary judgment. Because of procedural deficiencies in plaintiff's motion for summary judgment, we are constrained to reverse the judgment to plaintiff. We affirm the denial of the Colao/Bertinato defendants' cross-motion.

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c). We review the grant of summary judgment using the same standard as the motion judge.

Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Thus, we must determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plaintiff supported his motion with a statement of material facts, a letter brief, his own certification and that of his counsel. In the statement of material facts, plaintiff set forth as undisputed the facts alleged in the complaint that he had called the Note, that defendants had failed to make payment as required by the Note and Mortgage, that plaintiff had given notice of his intent to enforce the Guaranty and that defendants had failed to respond to that notice. These are the same facts that the Colao/Bertinato defendants had claimed they lacked knowledge of or denied in their answer. The Colao/Bertinato defendants likewise disputed these facts in their opposing statement of material facts. Plaintiff did not support any of these facts by a citation to the portion of the motion record establishing the fact or demonstrating that it was uncontroverted as required by R. 4:46-2(a).

Further, plaintiff did not attest to these facts in his certification. As to the default, plaintiff said only that "[a]s the court has been made aware in my attorney's submissions, this matter involves the nonpayment by the defendants with respect to a mortgage and promissory note. (See initial motion documents submitted by counsel)." As to the default notice, plaintiff did not claim that he gave such notice as he alleged in the complaint but instead averred that "[u]nder the agreement there was no requirement to provide a default notice and the plaintiff's motion must be granted." Plaintiff's counsel's certification did not address either issue.

Even were we to construe plaintiff's certification as implying that the borrower, Palisades, had failed to make payment on the Note when due, the certification would still be insufficient to establish the fact on a motion for summary judgment. Rule 1:4-4(b) Certification in Lieu of Oath, provides:

In lieu of the affidavit, oath or verification required by these rules, the affiant may submit the following certification which shall be dated and immediately precede the affiant's signature: "I certify that the foregoing statements made by me are true. I am aware that if any of the ...


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