August 5, 2013
BORIS BORETSKY, Plaintiff-Appellant,
ANDRE WM. GRUBER, ESQ., KARL BERKUTA, and KINGSTON HILL HOMES, L.L.C., Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 17, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5475-08.
Boris Boretsky, appellant pro se.
Andre Wm. Gruber (Gruber & Bilal), respondent pro se and attorney for respondents Karl Berkuta and Kingston Hill Homes, L.L.C. (Mr. Gruber, on the brief).
Before Judges Simonelli and Accurso.
Plaintiff Boris Boretsky appeals from a December 21, 2009 Law Division order, which granted summary judgment to defendants and dismissed the complaint with prejudice. Because we agree that there were no material facts in dispute and that defendants were entitled to judgment as a matter of law, we affirm.
Boretsky is serving a life sentence for the murder of his wife. Prior to her death, Boretsky was a member of a limited liability company, defendant Kingston Hill Homes, L.L.C. (Kingston or the LLC), along with defendants Andre Gruber and Karl Berkuta. Kingston was formed to develop a fifteen-lot single-family residential subdivision in South Brunswick. The project received final approval in January 2001. Kingston paid Boretsky to serve as the construction manager for the project.
In March 2002, Boretsky was arrested for the murder of his wife. He retained a criminal defense lawyer, Joseph Benedict, to represent him in what was to be a capital murder trial. Boretsky needed money for his defense and sought funds from Kingston. The development, however, was far from complete and Boretsky's arrest had left the project without a construction manager. Gruber and Berkuta ultimately agreed to provide funds for Boretsky's defense through a structured buy-out of his interest in Kingston.
The parties entered into a September 5, 2002 Purchase Agreement (Agreement) prepared by Jack Borrus on behalf of Benedict and Altman, Boretsky's criminal defense counsel. Boretsky retained his own independent counsel, George Hendricks, to represent him in connection with the deal. In exchange for Boretsky's one-third interest in the LLC, Kingston would fund up to $250, 000 of Boretsky's criminal defense. Kingston agreed to advance $40, 000 of this sum to Benedict in two installments (one within sixty days of execution and the other eight months later), but the remainder of the monies to Benedict was to come from interim distributions of profits as the homes were completed and sold. The Agreement also made provision for repayment of $100, 000 Boretsky owed Berkuta on an unrelated project and payment of approximately $30, 000 in legal fees Boretsky owed Gruber who had represented Boretsky in his divorce. The Agreement makes clear that, except for the initial $40, 000 payment to Benedict for costs in connection with Boretsky's criminal defense, the payments to Benedict, Berkuta and Gruber called for by the Agreement were to be paid out of the profits from the sale of each lot in the subdivision "based upon the cash flow of Kingston and the availability of funds for distribution to the parties solely as determined by [Gruber] and [Berkuta]." Finally, the Agreement provided for a conditional payment of $50, 000 to Boretsky if total net profits exceeded $1, 500, 000.
Defendants claim that several months after they had entered into their Agreement with Boretsky it became apparent that Kingston would not realize the profits the parties anticipated. The LLC did not make the second payment to Benedict until several months after it was due. As the criminal trial drew near, Gruber and Berkuta advised Benedict that the residential units were not selling out as quickly as hoped. They also expressed to him their belief that Boretsky's share would not cover defense counsel's requested $250, 000 fee. After reviewing Gruber and Berkuta's projections of Kingston's anticipated profits, Benedict agreed to accept a total of $217, 000 in full and final payment of all amounts owed him.
Gruber and Berkuta financed the payment to Benedict as well as the payments due them under the Agreement. Benedict, Berkuta, and Gruber signed a mutual release memorializing this new arrangement in December 2004. Although the Agreement provided that it could not be modified or amended without the signed consent of all parties, neither Boretsky nor Hendricks was advised of this new arrangement.
Boretsky was convicted of the murder of his wife and sentenced to life in prison. Forty-two months later, he filed a complaint alleging that defendants had breached the Agreement, and that he was owed the $32, 500 defendants had failed to pay Benedict plus the $50, 000 conditional payment on Kingston's profits, which he calculated to be $2, 700, 000.
After the close of discovery, defendants moved for summary judgment contending that they had fully performed their obligations under the Agreement and Boretsky lacked standing to complain about their subsequent arrangement with Benedict as Boretsky had relinquished his interest in Kingston in the Agreement. They asserted that Kingston had only generated a total profit of $295, 108 based on tax returns made a part of the motion. Thus, they argued that the $217, 000 paid to Benedict far outstripped the $98, 000 due Boretsky for his share, and that the total profits earned were nowhere near the $1, 500, 000 necessary to trigger the additional $50, 000 payment.
At oral argument on the motion, Judge Happas asked Boretsky how he calculated the $2, 700, 000 profit he claimed Kingston had generated. While acknowledging that he was not an accountant, Boretsky explained that he had relied on the closing statements from the sale of the houses, the construction management fees paid on the project, and his experience in construction and real estate in reviewing defendants' claimed expenses. Boretsky asserted that the tax returns submitted by defendants on the motion were fraudulently prepared. In response to additional questions by the judge, Boretsky acknowledged that it would, of course, be helpful to present an accountant to assist the jury in determining Kingston's profit. He explained, however, that he was indigent and without funds to hire an expert to review Kingston's records.
Judge Happas determined that the Agreement entered into by the parties was valid and enforceable and, by its terms, provided for a maximum of up to $250, 000 to be paid to Benedict from Boretsky's share of the profits. She found that defendants' unilateral modification of the Agreement, although perhaps a violation of that Agreement, did not result in any financial loss to Boretsky. Leaving aside Boretsky's failure to produce any competent evidence to support his claim to the $32, 500 not paid to Benedict, Judge Happas determined that Boretsky "was not entitled to those funds under the [A]greement and, therefore, cannot claim that he was injured by defendants' alleged breach."
The judge further found that Boretsky's claim that Kingston generated sufficient profit to trigger his conditional $50, 000 payment was not supported by any competent evidence in the record. The judge found that Boretsky had presented no proof to refute the profits clamed in defendants' tax returns. "Because [Boretsky's] self-serving assertion alone is insufficient to create a question of fact with respect to the alleged profits, [Boretsky] has failed to establish that defendants breached the [A]greement by withholding" the $50, 000 payment. Judge Happas entered summary judgment for defendants and dismissed the complaint with prejudice
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)
On appeal Boretsky argues that his contention that defendants' tax returns were fraudulent was sufficient to put Kingston's earned profits in issue and that defendants' admitted failure to timely pay the second $20000 installment to Benedict not only voided the Agreement but fatally hampered Benedict's ability to counter the "evidence that was fabricated by [the] county medical examiner " which led to Boretsky's murder conviction The arguments Boretsky presents are without sufficient merit to warrant further discussion in a written opinion R 2:11-3(e)(1)(E) We affirm substantially for the reasons expressed by Judge Happas in her December 21 2009 oral opinion