YOON H. BAE VS. ROMAN LEYFMAN (L-5274-15, BERGEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5646-17T4
YOON H. BAE and
SIN Y. CHUNG,
Plaintiffs-Respondents,
v.
ROMAN LEYFMAN,
Defendant,
and
MARINA GLEYZER, as
Administratrix/Executrix of the
ESTATE OF ROMAN LEYFMAN,
Defendant-Appellant.
_______________________________
Submitted July 9, 2019 – Decided September 26, 2019
Before Judges Nugent and Accurso.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-5274-15.
Hammerman Rosen, LLP, attorneys for appellant
(Marina Gleyzer, on the briefs).1
Sim & Record, LLP, attorneys for respondents (Sang
Joon Sim, on the brief).
PER CURIAM
Marina Gleyzer appeals from a June 29, 2018 order permitting plaintiffs
Yoon H. Bae and Sin Y. Chung to withdraw $250,000 on deposit in the Superior
Court Trust Fund pursuant to a settlement of this tort action against defendants
the late Roman Leyfman and his estate, for which Gleyzer, his daughter, is
administratrix. Finding no error, we affirm.
The facts are largely undisputed and easily summarized. Mr. Leyfman
struck Yoon Bae with his car as she pushed a baby carriage in a pedestrian
crosswalk across Palisades Avenue in Fort Lee, causing her serious injuries. Mr.
Leyfman passed away while the case was pending, and his insurance carrier
tendered its $250,000 policy into court pursuant to Rule 4:57-1. Plaintiffs
amended their complaint to add his estate and Gleyzer as administratrix.
The day before the parties were to report for trial, plaintiffs' counsel sent
a letter to Judge Polifroni reporting the case settled and thanking the court for
1
A Substitution of Attorney was filed by Marvin J. Hammerman four months
after briefs were filed; the case was not argued.
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its assistance, copied to all counsel. When Gleyzer failed to make payment in
accordance with the agreement plaintiffs believed they had struck, they moved
to enforce the settlement. Plaintiffs' counsel submitted a certification averring
that plaintiffs had agreed to accept $450,000 in full settlement of their claims,
$250,000 of which would come from the insurance proceeds on deposit with the
Superior Court, with the remaining $200,000 payable in quarterly installments
of $50,000 each by Gleyzer.
Insurance counsel for defendant Leyfman submitted a certification
explaining his efforts in negotiating settlement had been limited to the insurance
proceeds, and as to funds over that amount, the estate had its own counsel,
Anthony M. Carlino. He stated his understanding that Gleyzer had recently
consulted with new counsel, and at that new counsel's request he was submitting
Gleyzer's certification in opposition to the motion to enforce settlement , while
advising he would take no position on the motion.
In her certification, Gleyzer claimed plaintiffs were attempting to enforce
a settlement she believed was never finalized. Gleyzer did not refute plaintiffs'
counsel's assertion that the case had settled for $450,000. Instead she claimed
the estate was without assets, and "[w]hen [she] considered settling the case,"
she was under the mis-impression that she "could be held personally responsible
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for [her] father's negligence and that [she] would be forced to sit through a two
week trial and pay a lawyer to sit with [her]" at a cost over $50,000. Gleyzer
explained she "considered settling" the case because she was "sick and [didn't]
have a lot of money" and "wanted this case to be over without having to interfere
with [her] . . . treatment or pay a lawyer to try it." She claimed, however, that
she "wanted to pay the money over many years" and "never agreed to or
contemplated paying any amount of money within the next year."
At Gleyzer's direction, Mr. Carlino, the counsel who negotiated settlement
on her behalf, did not appear in court on the return date of the motion. Gleyzer
appeared with new counsel, who advised the court she had not yet executed a
substitution of counsel. Counsel for plaintiffs stated on the record that counsel
for the estate, Mr. Carlino, telephoned to advise him his client would increase
her prior offer of $175,000 to $200,000 to settle the case, which he accepted
after negotiating the medical liens to a sum acceptable to his clients. New
counsel for Gleyzer agreed her client had offered $175,000 to settle, but claimed
that offer "was rejected. Therefore, there was never a settlement." Counsel
claimed Gleyzer "never authorized anyone to offer $200,000."
After hearing from counsel for plaintiffs and Gleyzer, Judge Harz asked
insurance counsel his understanding of the settlement. After reiterating he was
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not involved in the negotiations of the amount to be paid from personal assets,
he advised the court that he was advised by both Mr. Carlino and plaintiffs'
counsel that the case had settled for $200,000 over the proceeds of the policy,
and he prepared and circulated a release reflecting that amount.
New counsel for Gleyzer represented her client remained willing to pay
$175,000 to settle the case but would need to pay that sum over several years as
"technically speaking the Estate is penniless because the property is in a Trust."
Upon further questioning from the court, new counsel for Gleyzer explained the
decedent's wife, Gleyzer's mother, lived in the trust property in New Jersey and
that there was also trust property located in Florida. Counsel acknowledged the
decedent created the trust after the filing of the lawsuit, but asserted "there was
no fraudulent conveyance." Counsel claimed the decedent was "elderly," and
"very ill," and not "paying his bills" and "so the properties were put into a trust
so that somebody could administer the trust."
After hearing argument, Judge Harz entered an order on March 26, 2018,
enforcing the settlement. In a rider to the order, the judge noted Gleyzer did not
contest plaintiffs' counsel's representation that Mr. Carlino communicated an
offer on behalf of Gleyzer to contribute $200,000 to the settlement to be paid in
four quarterly installments. Instead, the judge noted Gleyzer's certification
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focused on her "concern regarding payment terms." Considering that
certification, as well as the representations of plaintiffs' and insurance counsel
and the letter to Judge Polifroni, sent the day before trial reporting the case had
settled, Judge Harz found the $200,000 in quarterly installments "was the offer
that had been tendered by Ms. Gleyzer and that was accepted by plaintiffs."
Critically, no appeal was taken from that order. Gleyzer's appeal is from
the June 29, 2018 order occasioned by a motion filed by plaintiffs to permit them
to withdraw the insurance proceeds from the Superior Court Trust Fund
following Gleyzer's refusal to consent to the withdrawal. That motion, however,
did not toll the time for taking a timely appeal of the order enforcing settlement.
See Camden Lime Co. v. Borek, 63 N.J. Super. 174, 181 (App. Div. 1960); see
also R. 2:4-3(e) (listing the motions that toll the running of the time for taking
an appeal). In the rider to the June 29 order, Judge Harz noted Gleyzer's failure
to appeal the order of March 26, 2018 enforcing settlement. The judge further
noted that the opposition submitted by new counsel for Gleyzer, who the court
also noted never formally appeared in the matter, argued "issues pertaining to
the enforcement of the settlement, and [did] not provide any substantive
argument regarding withdrawal of the funds."
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Similarly, Gleyzer's arguments on appeal all relate to enforcement of the
settlement, not to the June 29, 2018 order appealed. See Campagna ex rel. Greco
v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div. 2001) (noting "it is
clear that it is only the judgments or orders or parts thereof designated in the
notice of appeal which are subject to the appeal process and review") (quoting
Pressler, Current N.J. Court Rules, cmt. 6 on R. 2:5-1(f)(3)(i) (2001)). Gleyzer's
statement that she was appealing the June 29, 2018 order and "prior orders" in
her case information statement is not sufficient. See Synnex Corp. v. ADT Sec.
Servs. Inc., 394 N.J. Super. 577, 588 (App. Div. 2007); Pressler & Verniero,
Current N.J. Court Rules, cmt. 2.3.2 on R. 2:2-3 (2019). More important here,
Gleyzer cannot resuscitate an untimely appeal of a final order terminating the
litigation by a timely appeal of a collateral order entered months later. See R.
2:4-3(e).
Even were it possible for us to review the March 26, 2018 order, which it
is not, see R. 2:4-4(a) (limiting extensions in civil appeals to thirty days), we
would find no error. Gleyzer's failure to directly refute plaintiffs' counsel's
certification that the case settled for $450,000, including a $200,000
contribution over insurance proceeds, her failure to provide any certification
from her counsel, Mr. Carlino, who tendered the settlement offer, as well as her
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direction that he not appear on the motion to enforce settlement, coupled with
the understanding of all counsel that the case had settled for $450,000 and their
advice to Judge Polifroni the case was settled, all support Judge Harz's finding
that no hearing was necessary to resolve the issue. See Amatuzzo v. Kozmiuk,
305 N.J. Super. 469, 474-75 (App. Div. 1997) (noting a hearing is required on a
motion to enforce a settlement, only when the evidence, considered in a light
most favorable to the party disputing settlement, is insufficient to permit the
judge to find there was an agreement to settle). The evidence here was simply
too one-sided to require a hearing.
Affirmed.
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