OLGA TCHIKINDAS VS. BASSER-KAUFMAN MANAGEMENT CORP. (L-1515-17, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3560-19
OLGA TCHIKINDAS,
Plaintiff-Respondent,
v.
BASSER-KAUFMAN
MANAGEMENT CORP., BASSER
KAUFMAN DEVELOPMENT
CORP., BASSER KAUFMAN,
INC., BASSER KAUFMAN,
BASSER KAUFMAN REAL
ESTATE PARTNERS, LLC,
MARLBORO PLAZA AND
UNIONDALE WG, LLC,
MARLBORO PLAZA
ASSOCIATES, LLC,
MARLBORO PLAZA
ASSOCIATES, MARLBORO
PLAZA, and MARLBORO
PLAZA PHASE I, INC.,
Defendants-Appellants/
Cross-Respondents,
and
TJX COMPANIES – TJ MAXX,
THE TJX OPERATING
COMPANIES, INC., and THE
TJX COMPANIES, INC.,
Defendants-Respondents/
Cross-Appellants.
_____________________________
Submitted April 13, 2021 – Decided May 4, 2021
Before Judges Yannotti, Haas, and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-1515-17.
Law Offices of Terkowitz & Hermesmann, attorneys
for appellants/cross-respondents (Patrick D. Heller, on
the briefs).
Kiernan Trebach, LLP, attorneys for respondents/cross-
appellants (Alan G. White, on the brief).
PER CURIAM
Basser-Kaufman Management Corp., Basser Kaufman, Inc., Uniondale
WG, LLC, Marlboro Plaza Associates, LLC, and Marlboro Plaza Associates
(collectively, B-K), appeal from: (1) orders dated July 16, 2019, which denied
B.K.'s motion for summary judgment and granted summary judgment in favor
of TJX Companies – TJ Maxx, TJX Operating Companies, Inc., and TJX
Companies, Inc. (collectively, TJX) on TJX's claim for indemnification and
defense costs; (2) an order dated October 30, 2019, which denied B-K's motion
for reconsideration; and (3) a judgment dated April 27, 2020, awarding TJX
A-3560-19
2
$27,329.30 in defense costs. TJX cross-appeals from the April 27, 2020 order.
For the following reasons, we affirm on the appeal, and remand for further
proceedings on the cross-appeal.
I.
Marlboro Plaza Associates (MPA), a New York joint venture, entered into
an agreement dated February 15, 1983, with Newton Buying Corp. (Newton),
TJX's predecessor in interest, under which MPA leased and demised to Newton
certain premises within the Marlboro Plaza Shopping Center (Marlboro Plaza or
the Shopping Center) in Marlboro Township (the Demised Premises).1 In the
lease, MPA is identified as Landlord and Newton as Tenant.
The lease provides that the Landlord will construct a one-story building
on the lot and the Tenant will operate a retail store under the TJ Maxx trade
name in the Demised Premises. The initial lease term was for ten years, to begin:
thirty days after the completion of construction of the building, ten days after
delivery of a certificate of occupancy, or August 31, 1983, whichever date is last
to occur. MPA and TJX Companies, Inc. executed amendments to the lease in
January 1995, August 1995, September 2003, and February 2012, which
1
According to the lease, Myron L. Kaufman, Steven Kaufman, Joan L.
Klagsbrun, Wendy (Orange) Kritzler, Martin Kaufman, Lois Kaufman, and the
Estate of Harold Basser are the sole venturers of MPA.
A-3560-19
3
expanded the Demised Premises and extended the lease term through January
31, 2019.
Article VIII of the lease addresses the obligations of the parties to make
repairs. Section 8.1 states that the Tenant "is required to maintain . . . the interior
of the Demised Premises, including, without limitation, all glass and utilities
conduits, fixtures and equipment within the Demised Premises . . . but excluding
all property which Landlord is required to maintain as below provided." Section
8.2 of the lease provides that:
Landlord shall make all replacements, repairs and
alterations to the property which Landlord is required
to maintain, as hereinafter set forth, which may be
necessary to maintain the same in good repair and
condition . . . However, notwithstanding anything in
this lease . . . The property which Landlord is required
to maintain is the foundation, the roof, the exterior
walls, the roof drainage system, the canopy and the
structural parts of the Demised Premises, plus all
Common Areas of the Shopping Center . . . .
Schedule B of the lease sets forth certain conditions. It provides, in part,
that the Tenant and all persons having business with the Tenant, "shall have the
right to use, in common with all other occupants of the Shopping Center and all
persons having business with such other occupants, all Common Areas of the
Shopping Center for parking and access in connection with business in the
Shopping Center." The lease also states that, "Landlord agrees that at all times
A-3560-19
4
there will be free and uninterrupted access . . . for pedestrians between the
[p]arking [a]reas and the main customer entrance of the Demised Premises." In
addition, the lease provides that, "Landlord . . . shall keep in good repair and
condition . . . all Common Areas of the Shopping Center . . . keep the Common
Areas suitably paved and . . . keep all Common Areas free of refuse and
obstruction . . . ."
Article XII of the lease addresses the parties' obligations for
indemnification. Section 12.1 states:
Tenant shall save Landlord harmless from, and defend
and indemnify Landlord against, any and all injury, loss
or damage, or claims for injury, loss or damage, of
whatever nature, to any person or property caused by or
resulting from any act, omission or negligence of
Tenant or any subtenant or concessionaire of Tenant. It
is a condition of this save harmless and indemnification
that Tenant shall receive prompt notice of any claim
against Landlord.
In addition, Section 12.2 of the lease states:
Landlord shall save Tenant harmless from, and defend
and indemnify Tenant against, any and all injury, loss
or damage, or claims for injury, loss or damage, of
whatever nature, to any person or property caused by or
resulting from any act, omission or negligence of
Landlord or its employees or agents. It is a condition
of this save harmless and indemnification that Landlord
shall receive prompt notice of any claim against Tenant.
A-3560-19
5
On April 23, 2017, plaintiff filed a complaint against Basser-Kaufman and
TJX. Plaintiff alleged that on April 18, 2015, she was "lawfully" walking
through the parking lot of the Shopping Center. Plaintiff asserted that she
"suddenly" twisted her foot and tripped "on cracked, defective pavement in the
parking lot" in front of the TJ Maxx store, and then tripped over the sidewalk
curb in front of the store.
Plaintiff claimed she sustained personal injures to her head, left shoulder,
left wrist and hand, and right ankle, as well as certain skin abrasions or
lacerations. She alleged that at all relevant times, defendants "owed a duty to
maintain, repair, [and] inspect for defects" on the premises at issue, and to
provide invitees an environment that was safe and free from hazards.
Plaintiff further alleged that defendants had allowed the premises "to be
and remain in a dangerous, insecure and therefore defective" condition, and this
condition created "an unreasonable hazard" to persons lawfully on the premises,
including plaintiff. She claimed she would not have been injured on the
premises but for defendants' negligence. She alleged that "[s]uch negligent acts
and omissions caused, contributed to, and were substantial factors in causing the
incident" and her injuries.
A-3560-19
6
B-K filed an answer and crossclaims against TJX, which included a claim
for contribution and indemnification. Thereafter, TJX filed an answer and
crossclaims against B-K. TJX asserted a claim against B-K for contribution as
well as indemnification and defense costs.
TJX later filed a motion for summary judgment on plaintiff's claims and
summary judgment on its crossclaim against B-K for indemnification and
defense costs. B-K opposed TJX's motion and filed a cross-motion for summary
judgment on TJX's claim for indemnification. Plaintiff joined B-K in opposing
TJX's motion.
On July 12, 2019, the judge heard oral argument and placed her decision
on the record. The judge found there were no genuine issues of material fact
and TJX was entitled to judgment as a matter of law on its claim against B-K
for indemnification and defense costs. The judge stated that under the
circumstances presented, TJX did not owe plaintiff a duty of care.
The judge noted that under the lease, B-K is required to hold TJX harmless
and indemnify TJX against any loss or damages for injury, of whatever nature,
to any person resulting from the negligence of the Landlord or its employees.
The judge pointed out that an indemnitee is entitled to defense costs so long as
the indemnitee is found to be free from active wrongdoing regarding the
A-3560-19
7
plaintiff's injury. The judge stated that the evidence showed plaintiff's injuries
were not due to any negligence on the part of TJX because TJX did not owe
plaintiff a duty of care as it had no obligation to maintain and repair the parking
lot where plaintiff was injured.
The judge filed orders dated July 16, 2019, which denied B-K's motion
for summary judgment and granted summary judgment in favor of TJX on its
claim for indemnification and defense costs. The judge ordered TJX to submit
an affidavit or certification detailing the attorney's fees and costs it was seeking,
with supporting documentation and additional legal authority.
B-K filed a motion for reconsideration of the court's July 16, 2019 orders.
B-K contended that the court should reconsider its decision that TJX was entitled
to indemnification and defense costs. Alternatively, B-K argued that the court
should reduce the amount of defense costs that TJX was seeking. TJX opposed
the motion. The judge heard oral argument on August 30, 2019 and later issued
an order and statement of reasons denying B-K's motion.
TJX filed an affidavit of services, which stated that it was seeking
$29,406.80 in attorney's fees and costs incurred from August 9, 2017, through
January 12, 2020. The judge filed an order dated April 27, 2020, which entered
judgment against MPA and Basser-Kaufman Management, Inc. in the amount of
A-3560-19
8
$27,329.30. The judge found this amount would reasonably compensate TJX
for the defense costs it incurred in the litigation. The judge also denied TJX's
application for post-judgment interest "without prejudice," noting that TJX had
not demonstrated it was entitled to the award of post-judgment interest.
In the attached statement of reasons, the judge noted that she had
disallowed some of the attorney's fees included in TJX's application. The judge
also rejected B-K's contention that the defense costs should be apportioned to
eliminate any costs TJX incurred defending against claims based on its own
negligence. This appeal and cross-appeal followed.
II.
On appeal, B-K argues that the judge erred by granting TJX's motion for
summary judgment on its claim for indemnification and defense costs. B-K
contends TJX is not entitled to indemnification against losses resulting from its
own negligence, and plaintiff's complaint included allegations of negligence on
the part of TJX.
We review the trial court's order granting summary judgment by applying
the standard in Rule 4:46-2(c). Invs. Bank v. Torres, 243 N.J. 25, 47 (2020)
(citing Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012)).
Therefore, we must determine "if the pleadings, depositions, answers to
A-3560-19
9
interrogatories and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of law." R. 4:46-
2(c).
Furthermore, when summary judgment is based on a legal conclusion, we
review the trial court's decision de novo. Torres, 243 N.J. at 47 (citing Templo
Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,
199 (2016)). A trial court's determination of a legal issue is not entitled to any
special deference. Ibid. (citing Templo Fuente De Vida, 224 N.J. at 199).
Here, there is no genuine issue of material fact. The parties agree that at
the relevant time, the lease was in effect between TJX, as Tenant, and MPA, as
Landlord, for premises in the Shopping Center, and that one of the B-K entities
was responsible for managing the Shopping Center. It is also undisputed that
plaintiff claimed she tripped and sustained injuries due to an alleged dangerous
condition in the parking lot, which is within the Common Areas of the Shopping
Center.
B-K argues, however, that the trial court erred by finding that TJX was
entitled under the lease to indemnification for the costs TJX incurred in
defending itself against plaintiff's claims of negligence. B-K contends plaintiff's
A-3560-19
10
complaint included claims of active negligence on the part of TJX, and the lease
did not clearly and unambiguously state that TJX was entitled to indemnification
for costs incurred defending these claims.
"The interpretation of a contract is subject to de novo review by an
appellate court." Kieffer v. Best Buy, 205 N.J. 213, 222-23 (2011) (citing
Jennings v. Pinto, 5 N.J. 562, 569-70 (1950)). On appeal, we give "no special
deference to the trial court's interpretation and look at the contract with fresh
eyes." Id. at 223 (citing Manalapan Realty, L.P. vs. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995)).
The court's "objective in construing a contractual indemnity provision is
the same as in construing any other part of a contract—it is to determine the
intent of the parties." New Gold Equities Corp. v. Jaffe Spindler Co., 453 N.J.
Super. 358, 385 (App. Div. 2018) (quoting Kieffer, 205 N.J. at 223). "The
judicial task is simply interpretative; it is not to rewrite a contract for the parties
better than or different from the one they wrote for themselves." Ibid. (quoting
Kieffer, 205 N.J. at 223).
"If an indemnity provision is unambiguous, then the words presumably
will reflect the parties' expectations." Id. at 386 (quoting Kieffer, 205 N.J. at
223). "However, indemnity provisions differ from provisions in a typical
A-3560-19
11
contract in one important aspect." Kieffer, 205 N.J. at 223. "If the meaning of
an indemnity provision is ambiguous, the provision is 'strictly construed against
the indemnitee.'" Ibid. (quoting Mantilla v. NC Mall Assocs., 167 N.J. 262, 272
(2001)).
There are two reasons for the "strict-construction approach." Id. at 224.
"[A] party ordinarily is responsible for its own negligence, and shifting liability
to an indemnitor must be accomplished only through express and unequivocal
language." Ibid. (citing Am. Bldg. Maint. Co. v. L'Enfant Plaza Props., Inc.,
655 A.2d 858, 861-62 (D.C. 1995)). Furthermore, under the American Rule,
each party is responsible for its own attorney's fees, in the absence of some
statute, judicial authority, or "express contractual language to the contrary. . . ."
Ibid. (citing L'Enfant Plaza Props., 655 A.2d at 861-62).
Where the contract does not expressly and unequivocally provide that the
indemnitor shall indemnify another party for the legal expenses incurred in
defending against claims of that party's own negligence, the indemnitor is not
liable for those costs. Mantilla, 167 N.J. at 272-73. The principles announced
in Central Motor Parts Corp. v. E.I. duPont deNemours & Co., 251 N.J. Super.
5 (App. Div. 1991), apply and "fill[] the gap that the parties left open in their
contract." Mantilla, 167 N.J. at 273.
A-3560-19
12
"[O]nce it is determined . . . that an indemnitee has defended against
alleged . . . charges of its independent fault, the indemnitor is not liable for
indemnification for those costs." Cent. Motor, 251 N.J. Super. at 12. Thus,
costs an indemnitee incurred "in defense of its own active negligence . . . are not
recoverable . . . ." Id. at 11 (citing Hanover Ltd. v. Cessna Aircraft Co., 758
P.2d 443, 448 (Utah Ct. App. 1988)).
In determining whether a party has alleged "active wrongdoing," the court
applies "an after-the-fact approach." Ibid. The indemnitee may recover its
defenses costs "so long as the indemnitee is free from active wrongdoing
regarding the injury to the plaintiff and has tendered the defense to the
indemnitor at the start of the litigation." Ibid. (quoting Piedmont Equip. Co. v.
Eberhard Mfg. Co., 99 Nev. 523, 527 (1983)).
The starting point for the analysis is the pleadings, "but the actual facts
developed during trial should control." Ibid. "Evidence which supports only a
finding of passive negligence . . . is insufficient to establish 'active
wrongdoing.'" Ibid. (citing Piedmont Equip. Co., 99 Nev. at 527). A claim that
an indemnitee is only "derivatively or vicariously liable" is a claim of passive
negligence. Ibid. (citing Hanover Ltd., 758 P.2d at 448).
A-3560-19
13
As noted, in her complaint, plaintiff asserted a negligence claim against
TJX based on the alleged failure to maintain the parking lot in the Common Area
of the Shopping Center. However, the lease clearly and unambiguously places
responsibility for maintenance and repair of the Common Areas of the Shopping
Center, including the parking lot, upon the Landlord, not the Tenant.
Therefore, the motion judge correctly found that under the terms of the
lease, TJX did not owe a duty of care to plaintiff. Because the judge found that
TJX was free from active wrongdoing with regard to plaintiff's injuries, TJX
was entitled under the lease to indemnification for the costs it incurred defending
against plaintiff's claims.
Our decision in Kandrac v. Marrazzo's Mkt., 429 N.J. Super. 79 (App.
Div. 2012), supports the trial court's conclusion that TJX was free from active
wrongdoing. In Kandrac, the defendant's store was one of thirty-six stores in a
shopping center. Id. at 81. The plaintiff fell in the shopping center's parking lot
after she left the defendant's store. Ibid.
The plaintiff filed a complaint naming the store and the shopping center
as the defendants. Id. at 82. She alleged that she fell because of a defect in the
parking lot. Id. at 87. The defendant's lease required the lessor to maintain the
A-3560-19
14
common areas of the shopping center, which included the parking areas for
customers. Ibid.
The plaintiff alleged that the defendant store had a duty to provide safe
ingress and egress from the store to the parking lot. Id. at 83. We held, however,
that under the circumstances, the defendant store did not owe a duty of care to
the plaintiff. Id. at 90-91. We stated that the lease
squarely assigns the duty to maintain the area where
plaintiff was injured to the landlord. Consistent with
that allocation, the testimony of the witnesses showed
that, while [defendant store's] employees made periodic
inspections of the parking area, all repair and
maintenance issues were referred to the landlord. The
landlord retained the obligation to make such
inspections, did so, and performed all necessary repairs
and maintenance. The record does not establish any
"rights" that [defendant store] had over the area where
the injury occurred that conflicted with the allocation
of responsibility in the lease covenant.
[Id. at 89.]
We concluded that, "as a general rule, when a commercial tenant in a
multi-tenant shopping center has no control or contractual obligation to maintain
a parking lot shared with other tenants, the common law does not impose a duty
upon the tenant to do so." Id. at 90-91. That holding applies here.
B-K argues, however, that a tenant in a multi-tenant shopping center may
be liable for negligence in a common area of the shopping center. B-K therefore
A-3560-19
15
argues that plaintiff's claim against TJX was, in fact, a claim of active negligence
for which TJX is not entitled to indemnification.
In support of this argument, B-K relies upon Nielsen v. Wal-Mart Store
No. 2171, 429 N.J. Super. 251 (App. Div. 2013). In Nielsen, Walmart had
retained the plaintiff's employer to provide exterminating services, and the
plaintiff was at the shopping center to perform the work. Id. at 254. The
developer of the mall owned and maintained the exterior around Walmart's unit.
Id. at 254-55. In the master deed with Walmart, the developer had agreed to
maintain and repair the common elements of the shopping center. Id. at 255.
We noted that Walmart had directed the plaintiff to the part of the common
elements for the performance of the services. Id. at 254.
We held that under these circumstances, Walmart owed a duty of care to
the plaintiff. Id. at 262-63. We stated the fact that the developer had
contractually agreed to repair and maintain the area in question provides some
support for Walmart's contention that it owed no duty to the plaintiff. Ibid. We
stated, however, that:
Walmart, as a unit owner, is fairly chargeable with a
duty to be familiar with the perimeter outside its unit
and other common areas that its invitees and passersby
might foreseeably use. The imposition of a duty
encourages a business owner such as Walmart to alert
the contractually responsible entity about hazardous
A-3560-19
16
conditions. Walmart also directed plaintiff to use the
unit's perimeter, and it was in the course of following
that direction that plaintiff encountered the area in
which he was injured. And Walmart had an adequate
remedy -- if found liable and held obligated to
compensate for an injury occurring on the developer's
property -- in its right to seek indemnification from the
developer. The relationship of the parties, the attendant
risks, the nature of the risks, and simpl[e] fairness to
the innocent plaintiff, warrant the imposition of a duty
of care on Walmart regarding hazardous conditions
outside and along the perimeter of Walmart's premises
even though the developer may also be liable and even
though the developer contractually agreed to be
responsible for repair and maintenance of the area.
[Id. at 263 (footnote omitted).]
However, B-K's reliance upon Nielsen is misplaced. In that matter,
Walmart did not have a duty to maintain the common elements of the shopping
center, but the court found it had a duty to inform the developer about hazardous
conditions. In addition, Walmart had directed the plaintiff to perform work in
the perimeter of the common area and the plaintiff was injured at that location.
In this case, the motion judge correctly found that TJX did not have a duty
under the lease to maintain the parking lot, and the lease did not require TJX to
inspect and alert the Landlord of any defects in the Common Areas.
Furthermore, TJX did not direct plaintiff to the area of the parking lot where she
fell. The judge correctly found that under the circumstances, TJX did not owe
A-3560-19
17
plaintiff a duty of care and TJX was free of active wrongdoing regarding
plaintiff's injuries.
In support of its argument, Basser-Kaufman also cites to New Gold. In
that case, the plaintiff brought suit against a bank alleging that it had been
negligent in the performance of its duties as trustee under a bond agreement. Id.
at 365-66. Following a bench trial, the court entered judgment for the bank,
finding that while the bank had been negligent, the plaintiff had not shown the
bank's negligence was a proximate cause for its damages. Id. at 370-71. The
court also found that the plaintiff "was negligent to an extent far greater than the
[b]ank" and its contributory negligence "was the primary cause of the harm."
Id. at 371. In addition, the court denied the bank's application for defense costs
incurred in the litigation. Id. at 371-72.
We held the trial court had correctly denied the bank's claim for defense
costs. Id. at 385-87. We noted that under the trust agreement, the bank was
entitled to indemnification for claims, damages, and losses arising out of, or
resulting from, the financing or sale of the underlying project. Id. at 386. We
concluded that the trial court had correctly applied the "after-the-fact" approach
in determining whether the bank had incurred costs defending claims of its own
active negligence. Id. at 387 (citing Cent. Motor, 251 N.J. Super. at 11).
A-3560-19
18
We noted that the facts developed at trial only concerned the bank's own
active negligence, and there were no allegations or findings that the bank was
only liable "derivatively or vicariously." Ibid. (quoting Cent. Motor, 251 N.J.
Super. at 11). We concluded that because the plaintiff's claims were based solely
on allegations of the bank's own negligence, it was not entitled to
indemnification for its defense costs. Ibid.
New Gold provides no support for B-K's arguments on appeal. As we
have explained, in New Gold, the party seeking indemnification was found to
be negligent, and the only claims developed at trial pertained to that party's own
active negligence. In this case, however, the motion judge expressly found that
TJX had no active wrongdoing regarding plaintiff's injuries. Thus, B-K's
reliance upon New Gold is misplaced.
B-K further argues that even if it is required to indemnify TJX, TJX's
recovery should be limited. B-K asserts that TJX should not be awarded fees
and expenses attributable to defenses primarily directed at rebutting charges of
its active negligence. The contention is entirely without merit. As noted, the
trial court found that TJX was free from active wrongdoing with regard to
plaintiff's injuries and the record supports that finding. The trial court correctly
A-3560-19
19
rejected B-K's contention that TJX's recovery for its defense costs should be
limited on this basis.
B-K also contends the trial court erred by denying its motion for
reconsideration. B-K's argument is without merit.
We will not disturb a court's decision on reconsideration "unless it
represents a clear abuse of discretion." Kornbleuth v. Westover, 241 N.J. 289,
301 (2020) (quoting Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283
(1994)). A court can reconsider its decision if: the decision was "based upon a
palpably incorrect or irrational basis," or the court failed to "consider, or . . .
appreciate the significance of probative, competent evidence." Ibid. (quoting
Guido v. Duane Morris LLP, 202 N.J. 79, 87-88 (2010)).
Here, the trial court's initial decision was not incorrect or irrational, and
the court properly considered all probative, competent evidence in reaching that
decision. The trial court's decision to deny B-K's motion for reconsideration
was not a mistaken exercise of discretion.
III.
In its cross-appeal, TJX argues that the trial court erred by refusing to
award it post-judgment interest. As noted, the judge found that TJX is not
A-3560-19
20
entitled to post-judgment interest because it had not established that it is entitled
to the award of such interest.
On appeal, TJX argues the award of post-judgment interest is essentially
"automatic" under Rule 4:42-11(a), and such interest should be awarded as a
matter of course unless there are exceptional circumstances that warrant denial
of such interest. TJX contends there are no exceptional circumstances
warranting the denial of post-judgment interest in this case.
Rule 4:42-11(a) states that, "[e]xcept as otherwise ordered by the court or
provided by law, judgments, awards and orders for the payment of money, taxed
costs and attorney's fees shall bear simple interest," calculated in accordance
with the rule. We have observed that "[b]oth [Rule 4:42-11(a)] and our case law
clearly indicate that a judgment creditor is entitled to post-judgment interest at
the rate specified in [Rule] 4:42-11(a) absent an extraordinary and equitable
reason." Marko v. Zurich N. Am. Ins., 386 N.J. Super. 527, 532 (App. Div.
2006).
Here, the trial court erred by stating that post-judgment interest should not
be awarded because TJX failed to present reasons to justify the award of post-
judgment interest. Rule 4:42-11(a) provides that post-judgment interest should
be awarded on a monetary judgment unless the court orders otherwise. A party
A-3560-19
21
who obtains a monetary judgment should be awarded post-judgment interest
unless the court finds there is an "extraordinary and equitable" reason for
denying such interest.
Therefore, we remand the matter to the trial court for further consideration
of TJX's claim for post-judgment interest. The trial court should award TJX
post-judgment interest unless the court finds there is an "extraordinary and
equitable" reason for denying such interest.
Affirmed in part and remanded in part for further proceedings in
accordance with this opinion. We do not retain jurisdiction.
A-3560-19
22