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Dispenziere v. Kushner Cos.

Superior Court of New Jersey, Appellate Division

November 21, 2014

CHRISTINE A. DISPENZIERE, DANIEL SANTO PIETRO, SUBRATA CHOUDHURI, DAISY GONZALEZ, MICHAEL & ELLA SHAYKEVICH, ERIC & MICHAEL HORN, JOSEPH & LINDA HORN, NEIL & LAUREN HUNTER, JOHN & NANCY ENG, RICHARD PAVLOWSKI, CHARLES YAREMKO, RAO & VASUNDLARA DESU, ROY & GLORYA MATTHEWS, HERBERT LEARY and NICHOLAS JULIANO, Plaintiffs-Appellants, and INGRID ARMSTRONG, TRACY JORDAN, BART & BIANCA KWIATKOWSKI, DAVID MAYS, SUDHANSHU AND GEETI SHUKLA, JENNIFER AND FRANCISCO CHACON, and JAMES AND MARGARET FLYNN, Plaintiffs,
v.
KUSHNER COMPANIES, WESTMINSTER COMMUNITIES, WESTMINSTER REALTY, LLC, THE LANDINGS AT HARBORSIDE, LLC, THE LANDINGS, INC., LANDINGS BUILDING 136A, LLC, LANDINGS BUILDING 136B, LLC, and BUILDER MARKETING SERVICES CO., INC., Defendants-Respondents, and INTEGRA MANAGEMENT CORP., and THE LANDINGS AT HARBORSIDE MASTER ASSOCIATION, INC., Defendants

Argued November 6, 2014

Approved for Publication November 21, 2014.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7384-12.

Patrick J. Whalen argued the cause for appellants.

Paul Bishop argued the cause for respondents ( Brach Eichler LLC, attorneys; Mr. Bishop, Charles X. Gormally and Thomas Kamvosoulis, on the brief).

Before Judges WAUGH, MAVEN, and CARROLL. The opinion of the court was delivered by CARROLL, J.A.D.

OPINION

Page 1127

[438 N.J.Super. 12] CARROLL, J.A.D.

In Atalese v. United States Legal Services Group, L.P., 219 N.J. 430, 446, 99 A.3d 306 (2014), our Supreme Court recently held a contractual arbitration provision unenforceable because it lacked the necessary " clear and unambiguous language that the plaintiff is waiving her right to sue or go to court to secure relief." In the present appeal, because we conclude that the arbitration provision upon which defendants rely suffers from the same infirmity, we reverse the trial court's February 11, 2014 order compelling plaintiffs to submit their claims to arbitration.

I.

We briefly summarize the most salient facts. Plaintiffs are twenty-two of thirty-three purchasers of condominium units in a [438 N.J.Super. 13] real estate development in Perth Amboy known as " The Landings at Harborside" (The Landings). As currently comprised, The Landings consists of two buildings - the " Admiral" and the " Bayview." These plaintiffs purchased condominium units in the Admiral during 2004 through 2007. The remaining eleven plaintiffs purchased condominium units in the Bayview and are not part of this appeal.

According to plaintiffs' first amended complaint, filed on February 1, 2013, the Perth Amboy Redevelopment Agency (PARA) adopted a resolution in August 2000, authorizing the City of Perth Amboy to enter into a redevelopment agreement with defendant The Landings at Harborside, LLC. The resolution provided that the development was to be known as " The Landings," and would consist of, among other things: (1) " 190,000 square feet of retail space" ; (2) " 2094 [u]nits of residential housing consisting of 98 townhomes, 102 row houses, and almost 1900 low-rise and mid-rise [c]ondominium homes" ; (3) " [a] hotel" ; (4) " 2569 parking spaces" ; (5)

Page 1128

" [a] [c]ultural [c]ommunity [c]enter" ; (6) " [a] public waterfront walkway" ; and (7) " Gateway Festival Park and Founders Park."

In September 2000, Perth Amboy entered into a redevelopment agreement with The Landings at Harborside, LLC, designating it as the redeveloper. The project was allegedly marketed to plaintiffs and the general public as a $600 million mixed-use development that, as previously noted, would include townhouses, condominiums, retail space, and parks.

In 2004, defendant Landings Building 136A, LLC, issued a public offering statement (POS) concerning the Admiral, and began entering into agreements with plaintiffs for the purchase of condominium units in that building. The purchase agreement used in these transactions is a seventeen-page document. On the tenth page, in the same format as the ...


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