United States District Court, D. New Jersey
Michael Vazquez, U.S.D.J.
case comes before the Court on four separate motions for
summary judgment: two by all Defendants except for Tilcon New
York Inc. ("Tilcon"); one by Joseph M. Sanzari Inc.,
Timothy Murray, North Bergen Asphalt LLC, and Joseph M.
Sanzari (the "Sanzari Defendants"); and one by
Plaintiff AMA Realty LLC ("AMA"). The underlying
dispute is over alleged illegal dumping of hazardous
materials in violation of both a lease and the relevant
government regulations. Plaintiff alleges that
Defendants' activities caused substantial damages to
Plaintiffs property that will need costly remediation and may
result in liability from government regulators. For the
reasons set forth below, Defendants' motion as to Counts
One and Two is GRANTED; the Sanzari
Defendants' motion as to Count Three is
GRANTED; Defendants' motion as to Counts
Four, Five, Seven and Nine is GRANTED in
part and DENIED in part; and Plaintiffs
motion is DENIED.
relevant facts are taken from the First Amended Complaint
("FAC"), the parties' respective statements of
material fact,  and the documents annexed to their
submissions. Plaintiff owns a parcel of land and a commercial
structure located at 9501 Fairview Avenue in North Bergen,
New Jersey (the "Property"), which is subject to a
lease signed by Michael Aita for AMA and Joseph M. Sanzari.
See Ex. 1 to the Certification of Bruce L.
Goldstein, Esq. in Support of Plaintiff s Motion for Partial
Summary Judgment (hereinafter "Goldstein Cert.").
Aita is the president of AMA. FAC, D.E. 31 at ¶1. The
parties agree that AMA is a party to the lease but dispute
who is the other party. The lease term ran from July 1, 2007
to June 30, 2017. Id. at ¶¶1-2. The lease
also contained an option to purchase after 10 years.
Defendants' SOMF Count II at ¶6; FAC at ¶1, 26,
28. Plaintiff alleges that the lease was signed with the
understanding that the property would be used for
"construction equipment storage." FAC at ¶30.
noted, the parties dispute whether the lease is truly between
AMA and Defendant 9440 Fairview Avenue LLC
("Fairview") or between AMA and Sanzari personally.
See Defendants' SOMF Counts I and II at ¶2,
Plaintiffs SOMF Counts I and II at ¶2. When Sanzari
signed the lease, Fairview had not yet been formed but it was
created before the effective date on the lease. See
Ex. EE to the Certification of Timothy Corriston, D.E. 181-5
(hereinafter "Corriston Cert."); Ex. 1 to Goldstein
Cert. Sanzari was president and majority stockholder in
Fairview. Sanzari Defendants' SOMF Count III at ¶21.
The title of the lease reads "Agreement of Lease between
AMA Realty, a New Jersey Partnership ... and Joseph M.
Sanzari, Tenant, " while the first paragraph names AMA
Realty and 9440 Fairview Avenue Properties as the parties to
the lease. See Ex. 1 to Goldstein Cert.
August 2011, Defendant North Bergen Recycling LLC
("NBR"), which recycled asphalt and concrete, was
located on a parcel adjacent to the AMA-owned land.
Defendants' SOMF Counts I and II at ¶8. Trucks
delivered asphalt and concrete to NBR, who would then process
the material and ship it to a recycling plant.
Defendants' SOMF Counts I and II at ¶34. Defendant
Timothy Murphy managed and directed NBR, although Plaintiff
contends that Sanzari was a principal of NBR. Plaintiffs SOMF
Counts I and II at ¶8. Murphy is Sanzari's
son-in-law. FAC at ¶32.
order to recycle the asphalt and concrete, NBR applied for a
Class B permit from the New Jersey Department of
Environmental Protection ("NJDEP") in 1991. FAC at
¶33. NBR was granted the permit in 1993, and it was
renewed in 1999, 2004, and 2009. Id. at ¶¶
35-36. Defendants claim that NBR received the permit in 1991.
Defendants' SOMF Counts I and II at ¶35 (stating
that a temporary permit was granted in 1991 and a final
permit was issued in 1994). Plaintiffs alleges that the NJDEP
initially "withheld" the permit in 1991 because NBR
failed to disclose "the amount of residual waste
expected from the recycling process." FAC at ¶34.
referenced, this case centers on the allegedly illegal
dumping of hazardous materials, and related actions by
certain Defendants, on the Property. Plaintiff claims that
during the lease term, NBR wrongfully deposited the
byproducts of their recycling operations on the Property.
Plaintiffs SOMF Counts I and II at ¶17, FAC at
¶5-7. Plaintiff further alleges that NBR "engaged
in filling in protected wetlands in an unauthorized
expansion" of the Property, and "dumped
contaminated and or hazardous materials directly into"
adjacent creeks. FAC at ¶¶6-7. Plaintiff adds that
Defendants expanded their operations on the Property without
NJDEP approval and concealed residual waste from NJDEP.
Id. at ¶¶5, 6, 41, 44. By dumping residual
waste, recycled asphalt millings, and concrete aggregate on
the Property, Plaintiff alleges Defendants changed the grade
of the Property, forming a "slope now directed toward
the building, " which in turn causes flooding. FAC at
¶11. Plaintiff states that before the dumping, the grade
of the property ran away from the building on the Property.
Id. at ¶51. Due to the change in the grade,
Plaintiff asserts that the building now floods and that
certain Defendants also improperly installed storm drains.
Id. As a result of the foregoing actions, Plaintiff
alleges that Defendants violated the terms of the lease and
engaged in a scheme to defraud both Plaintiff and the NJDEP.
vacated the Property on December 15, 2011, several years
before the June 30, 2017 termination date. FAC at ¶12.
In August 2011, NBR sold its recycling business to Defendant
Tilcon, which continues to operate on the adjoining land. FAC
at ¶40. Plaintiff alleges that Tilcon "permitted
and continues to permit contaminated groundwater to
flow" onto the Property. Id. at ¶14.
facts pertinent to the specific claims are discussed in more
filed its initial Complaint on January 23, 2013. D.E. 1. It
filed the FAC on September 9, 2013. D.E. 31. The FAC sets
forth the following counts against all Defendants except
Tilcon: Count One - violations of the Racketeer Influenced
and Corrupt Organizations Act ("RICO"), Count Two -
RICO conspiracy, Count Three - breach of contract, Count Four
- negligence, Count Five - unjust enrichment, Count Six -
violations of the Clean Water Act ("CWA"), Count
Seven - fraud, and Count Nine - punitive damages.
Id., Count Eight is a claim for private nuisance
against Tilcon. Defendants filed a motion to dismiss the FAC
on September 18, 2013. D.E. 33. Tilcon filed a motion to
dismiss shortly thereafter. D.E. 38. Judge McNulty denied
both motions, finding that Plaintiff had set forth plausible
allegations, on May 2, 2014. D.E. 52, 53.
30, 2014, Plaintiff filed a motion for a permanent injunction
to enjoin Defendants from entering Plaintiffs property, which
was denied by Judge McNulty on August 14, 2014. D.E. 56, 78.
In their amended Answer, Defendants filed a third-party
complaint against Perfect Body & Fenders Co., Inc.
("PBF") for contribution and indemnification, and
counterclaims against Plaintiff for breach of contract,
breach of the duty of good faith and fair dealing, and unjust
enrichment. D.E. 64. PBF had entered into a sublease with
Fairview for a portion of the building on the Property.
filed the instant motions on December 23, 2016. D.E. 180,
181, 182. Plaintiff filed its opposition on
February 3, 2017, D.E. 189, 190, 194, and Defendants replied
on April 13 and 17, 2017. D.E. 211, 213, 214. Plaintiff also
filed a motion for summary judgment as to the issue of
Sanzari's personal liability on the lease on December 23,
2016. D.E. 184. Defendants opposed Plaintiffs motion, D.E.
187, to which Plaintiff replied on February 17, 2017. D.E.
Summary judgment is proper where the moving party "shows
that there is no genuine dispute as to any material fact,
" and the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a); Abraham v. Raso,
183 F.3d 279, 287 (3d Cir. 1999). A fact in dispute is
material when it "might affect the outcome of the suit
under the governing law" and is genuine "if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes
over irrelevant or unnecessary facts will not preclude
granting a motion for summary judgment. Id. "In
considering a motion for summary judgment, a district court
may not make credibility determinations or engage in any
weighing of the evidence; instead, the nonmoving party's
evidence 'is to be believed and all justifiable
inferences are to be drawn in his favor.'"
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d
Cir. 2004) (quoting Anderson, 477 U.S. at 255)). A
court's role in deciding a motion for summary judgment is
not to evaluate the evidence and decide the truth of the
matter but rather "to determine whether there is a
genuine issue for trial." Anderson, 477 U.S. at
moving for summary judgment has the initial burden of showing
the basis for its motion and must demonstrate that there is
an absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the
moving party adequately supports its motion, the burden
shifts to the nonmoving party to "go beyond the
pleadings and by her own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for
trial." Id. at 324 (internal quotation marks
omitted). To withstand a properly supported motion for
summary judgment, the nonmoving party must identify specific
facts and affirmative evidence that contradict the moving
party. Anderson, 477 U.S. at 250. "[I]f the
non-movant's evidence is merely 'colorable' or is
'not significantly probative, ' the court may grant
summary judgment." Messa v. Omaha Prop. & Cas.
Ins. Co., 122 F.Supp.2d 523, 528 (D.N.J. 2000) (quoting
Anderson, 477 U.S. at 249-50)).
there is "no genuine issue as to any material fact"
if a party "fails to make a showing sufficient to
establish the existence of an element essential to that
party's case." Celotex Corp., 477 U.S. at
322. "If reasonable minds could differ as to the import
of the evidence, " however, summary judgment is not
appropriate. See Anderson, 477 U.S. at
RICO Claims - Counts One and Two
18U.S.C. § 1961 et seq., states that "[i]t
shall be unlawful for any person employed by or associated
with any enterprise engaged in, or the activities of which
affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of such
enterprise's affairs through a pattern of racketeering
activity or collection of unlawful debt." 18 U.S.C.
§ 1962(c). Racketeering activity is defined in §
1961(1)(B) as "any act which is indictable under" a
number of listed federal laws, including mail fraud; these
federal offenses are called "predicate acts."
See 18 U.S.C. § 1341; 18 U.S.C. §
1962(1)(B). To claim a violation of § 1962(c), a
plaintiff must show "(1) conduct; (2) of an enterprise;
(3) through a pattern; (4) of racketeering activity."
Sedima, S.P.L.R. v. Imrex Co., Inc., 473 U.S. 479,
496 (1985). A "pattern" of racketeering activities
requires two acts of racketeering within a ten-year period.
18 U.S.C. § 1961(5). To prove civil liability under
RICO, a plaintiff must prove injury to "his business or
property." 18 U.S.C. § 1965(c).
here alleges the predicate act of mail fraud, 18 U.S.C.
§ 1341. The mail and wire fraud statutes "prohibit
the use of the mail or interstate wires for purposes of
carrying out any scheme or artifice to defraud."
Kolar v. Preferred Real Estate Investments, Inc.,361 Fed.Appx. 354, 362 (3d Cir. 2010). The scheme "need
not be fraudulent on its face, but [it] must involve some
sort of fraudulent misrepresentation or omission reasonably
calculated to deceive persons of ordinary prudence and
comprehension." Id. (citations omitted).
"Just as the mailings are an element of the federal
offense of mail fraud, so too is the scheme or artifice to
defraud." Tabas v. Tabas,47 F.3d 1280, 1294
(3d Cir. 1995), see also Gagliardi v. Ward, 967