NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 24, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3191-10.
Lowenstein Sandler, attorneys for appellant (Karim G. Kaspar and Richard A. Bodnar, of counsel and on the brief).
Mirzaian Hardesty, LLC, attorneys for respondents Paul Jallo and Maroun Jallo (Paul F. Campano, of counsel and on the brief).
Before Judges Reisner and Yannotti.
Plaintiff, Glikin Brothers, Inc., appeals from a June 29, 2012 order, denying plaintiff's motion for reconsideration of an order dated May 11, 2012 granting summary judgment in favor of defendants, Paul and Maroun Jallo (the Jallo defendants or defendants). We affirm.
Plaintiff initially filed suit in July 2010, against Gabriel Sharbel, Inc. and the Jallo defendants, seeking to collect $224, 865.65 on a book account for goods delivered to two convenience stores in Mercer County, Jennifer Exxon and Michelle Exxon. Plaintiff claimed that, in payment for the goods delivered to the stores, the Jallo defendants signed corporate checks that were dishonored by the bank. Gabriel Sharbel, Inc. defaulted, and plaintiff obtained a judgment by default for $56, 467.36 against the corporation. The Jallo defendants filed an answer denying that they were liable for the corporation's debts.
Plaintiff failed to take the Jallo defendants' depositions during the discovery period. Instead, on April 4, 2012, plaintiff served deposition notices for April 24, 2012, although the case was scheduled for trial on June 11, 2012. In keeping with Rule 4:46-1, requiring that summary judgment motions be returnable no later than thirty days prior to the scheduled trial date, the Jallo defendants filed a motion for summary judgment on April 5, 2012.
In support of their motion, defendants filed a certification from their attorney, authenticating documents that the defense had obtained from plaintiff in discovery. The gist of the motion was that plaintiff had produced no evidence on which to base a claim against the Jallo defendants individually. In opposing the motion, plaintiff did not submit any certifications of its corporate employees or officers concerning the company's dealings, if any, with the Jallo defendants.Instead, plaintiff asserted that the motion was premature because it had not yet taken the Jallo defendants' depositions.
On May 11, 2012, Assignment Judge Patricia K. Costello granted summary judgment, for reasons she stated in a written opinion of the same date. She found that plaintiff produced no evidence that defendants wrote personal checks payable to plaintiff, that plaintiff issued any invoices to the individual defendants, or that those defendants issued any individual guarantees or assumptions of the corporation's debts. She concluded that "[t]he mere fact that two years into the case, and on the eve of trial, plaintiffs have yet to depose defendants" did not preclude summary judgment.
In its motion for reconsideration, plaintiff apparently submitted several invoices purportedly "issued to Paul Jallo." However, in its appellate appendix, plaintiff has not provided us with either the invoices or the certification it submitted with its motion. See R. 2:6-1(a)(1). According to defendants, the certification was signed by an outside accountant, rather than by a company employee with personal knowledge of its records and its interaction with the Jallo defendants.
In her June 29, 2012 opinion denying reconsideration, Judge Costello noted that the invoices were "clearly sent to either Jennifer Exxon or Michele Exxon, with an additional line beneath stating Paul Jallo." She found this was insufficient to establish Paul Jallo's individual liability, and noted the invoice did not even mention Maroun Jallo. The judge also stated that the discovery end date was April 9, 2012, and plaintiff had not explained why it had "not even attempted" to take defendants' depositions "until the eve of trial." She further noted that plaintiff failed to state with any specificity what ...