MARLY CARO, ETC. VS. WILLIAM PEREZ(C-7-15, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2210-15T3
MARLY CARO, on behalf of
A LIMITED LIABILITY COMPANY
or CORPORATION TO BE FORMED,
Plaintiff-Respondent,
v.
WILLIAM PEREZ,
Defendant-Appellant.
_________________________________
Submitted May 10, 2017 – Decided June 26, 2017
Before Judges Alvarez and Manahan.
On appeal from Superior Court of New Jersey,
Chancery Division, Hudson County, Docket No.
C-7-15.
The Abraham Law Firm, LLC, attorneys for
appellant (Markis M. Abraham, on the briefs).
Vincent J. La Paglia, attorney for respondent.
PER CURIAM
Defendant William Perez appeals from an order for specific
performance entered in favor of plaintiff Marly Caro following a
bench trial. We affirm.
We discern the following facts from the trial record. In
April 2013, plaintiff approached defendant and advised him that
she was interested in purchasing defendant's property located at
364-366 Palisades Avenue, Jersey City, New Jersey (the property).
Predicated upon that conversation, a contract of sale was prepared
by plaintiff's attorney, Vincent La Paglia. The contract provided
for a purchase price of $750,000, comprised of a $75,000 deposit,
financing of $525,000, and a cash payment due at closing of
$150,000.1 Paragraph 6 of the contract recited a mortgage
contingency clause.
The [b]uyer agrees to make a good faith effort
to obtain a first mortgage loan upon the terms
listed below. The [b]uyer has until 60 [days
after conclusion of inspection contingency] to
obtain a commitment from a lender for this
mortgage loan or to agree to buy the
[p]roperty without this loan. If this is not
done before this deadline, and any agreed-upon
extensions, either party may cancel this
[c]ontract.
After approval from defendant's attorney, Joseph Greco, both
parties signed the contract on June 7, 2014.
1
While the contract indicated that the deposit was previously
paid, plaintiff and La Paglia both testified the deposit money
remained in La Paglia's trust account. Plaintiff was not aware
of the deposit payment status until December 2014.
2 A-2210-15T3
Plaintiff subsequently applied for a loan and La Paglia
ordered a title report. The title report revealed issues that had
to be addressed prior to the closing.
Sometime in July or August 2014, after plaintiff sold property
she owned in Brazil, she advised defendant of her intention to
purchase the property without mortgage financing. Defendant did
not object and told plaintiff to speak with her attorney.
By letter dated August 25, 2014, La Paglia corresponded to
Greco that "[m]y client advises she should have mortgage commitment
within the next two (2) weeks. Subject to clear title, we should
be in a position to close." The letter further stated that the
preliminary title binder disclosed judgments against defendant,
as well as two open mortgages on the property, both of which were
in foreclosure.
In November 2014, defendant listed the property for sale with
a broker and placed a sign on the property. After observing the
sign, plaintiff removed it and contacted her attorney. Plaintiff
stated that she also contacted defendant.
Defendant's attorney mailed and faxed a letter, dated
November 24, 2014, which declared the contract "cancelled and null
and void for failure of the buyer to make the required deposit of
escrow monies and passage of time without furnishing a mortgage
commitment." The next day, via email, plaintiff's attorney
3 A-2210-15T3
rejected defendant's attempt to terminate the contract and advised
that plaintiff intended to proceed on an all-cash basis. Further,
plaintiff's letter stated that "the reason this matter has not
closed is [defendant's] inability, at this stage, to satisfy the
title requirements[.]" Defendant refused to close title and
entered into a sales contract with a third party for $1 million.
On January 9, 2015, plaintiff filed a three-count complaint
seeking specific performance of a contract for the sale of real
estate. Additionally, plaintiff pled breach of contract and
requested restraints. On the same day, plaintiff filed a notice
of lis pendens.2 Defendant filed an answer with a counterclaim on
February 17, 2015, alleging tortious interference with a
prospective economic advantage, tortious interference with
contractual relation, and unlawful interference with contractual
relations.3 Plaintiff filed an answer to the counterclaim on March
4, 2015.
A bench trial was held on December 8, 2015, before Judge
Hector Velazquez. At trial, the judge heard testimony from
plaintiff, La Paglia, and Stephen Flatlow, the attorney who
conducted title services, on plaintiff's behalf. Defendant
2
The lis pendens is not part of the record on appeal.
3
Defendant's motion for summary judgment, plaintiff's opposition,
and the court order denying summary judgment are not part of the
record on appeal.
4 A-2210-15T3
testified on his own behalf. Defendant moved for a directed
verdict after plaintiff rested, which was denied. After both
parties rested, the judge rendered an oral opinion. In his
opinion, the judge held that plaintiff was not in material breach
for her failure to make a timely deposit. The judge also dismissed
defendant's counterclaim.
In addition to his oral opinion, the judge issued a seven-
page written opinion, reaffirming that (1) plaintiff was not in
material breach for her failure to make the deposit pursuant to
the contract; and determining that (2) the contract did not require
plaintiff to give written notice of her election to proceed without
a mortgage; and (3) equity dictates the court to compel defendant
to specifically perform under the terms of the contract and deliver
a deed at the time and place scheduled for closing. As a result,
the judge entered a judgment of specific performance in favor of
plaintiff on December 22, 2015. All other counts in the complaint
were dismissed and any request for compensatory damages was denied.
This appeal followed.4
Defendant raises the following points on appeal:
4
Following the filing of the notice of appeal, the judge entered
an order staying the enforcement of the judgment pending appeal
and ordering defendant to post a bond.
5 A-2210-15T3
POINT I
THE TRIAL COURT ERRED IN GRANTING SPECIFIC
PERFORMANCE BECAUSE THE CONTRACT OF SALE WAS
VOID AND UNENFORCEABLE AND THE DEFENDANT'S
TERMINATION WAS VALID.
A. [PLAINTIFF] COMMITTED A MATERIAL
BREACH OF CONTRACT BY FAILING TO
MAKE THE DEPOSIT. THEREFORE, THE
CONTRACT WAS UNENFORCEABLE AND
VALIDLY TERMINATED.
1. [PLAINTIFF] DID NOT
PROVIDE CONSIDERATION FOR
THE CONTRACT TO PURCHASE
THE PROPERTY THEREFORE
THE CONTRACT WAS VOID.
2. [PLAINTIFF'S] FAILURE
TO MAKE THE DEPOSIT WAS A
MATERIAL BREACH OF
CONTRACT.
B. [PLAINTIFF] DID NOT OBTAIN A
MORTGAGE COMMITMENT WITHIN THE
CONTINGENCY PERIOD, SHE COULD NOT
UNILATERALLY WAIVE [DEFENDANT'S]
RIGHT TO CANCEL THE CONTRACT
PURSUANT TO THE MORTGAGE
CONTINGENCY CLAUSE, AND THEREFORE,
[DEFENDANT] HAD A RIGHT TO TERMINATE
THE CONTRACT.
1. [PLAINTIFF] HAD NO
RIGHT TO WAIVE
[DEFENDANT'S] RIGHTS
UNDER THE MORTGAGE
CONTINGENCY.
2. [PLAINTIFF] DID NOT
OBTAIN A MORTGAGE
COMMITMENT WITHIN THE
CONTINGENCY PERIOD,
6 A-2210-15T3
THEREFORE THE CONTRACT
WAS VOIDABLE.
C. SPECIFIC PERFORMANCE WAS NOT
APPROPRIATE BECAUSE THE EQUITIES
MAKE ENFORCEMENT OF THE CONTRACT
AGAINST [DEFENDANT] TOO HARSH.
POINT II
THE TRIAL COURT ERRED BY DISMISSING THE
DEFENDANT'S COUNTERCLAIM BECAUSE THERE WAS
EVIDENCE THE TERMINATION OF CONTRACT WAS VALID
AND THERE WAS EVIDENCE IN THE RECORD THE
DEFENDANT SUFFERED DAMAGES.
Our review of a decision following a bench trial is limited
by well-settled principles. Sebring Assocs. v. Coyle, 347 N.J.
Super. 414, 424 (App. Div.), certif. denied, 172 N.J. 355 (2002).
"We do not weigh the evidence, assess the credibility of witnesses,
or make conclusions about the evidence." State v. Barone, 147
N.J. 599, 615 (1997). We accord deference to the findings of fact
by the court after a non-jury trial, provided the findings are
supported by substantial credible evidence in the record as a
whole. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65
N.J. 474, 484 (1974). We owe no deference, however, to a trial
court's conclusions of law. Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995).
On appeal, defendant argues the deposit, which amounts to ten
percent of the contract price, was a material term of the contract
that required defendant to forego his right to market the property
7 A-2210-15T3
at a higher price, as well as for defendant's security during the
mortgage commitment process, and to measure plaintiff's commitment
to close the transaction. Furthermore, defendant argues that he
was entitled to terminate the contract because plaintiff did not
obtain a mortgage commitment within the contingency period, nor
did she notify defendant in writing that she wished to proceed
with an all-cash deal.
Every failure to perform as required by a contract, even a
small failure, is a breach that gives rise to a claim for damages.
Restatement (Second) of Contracts § 236 comment a (1981). A breach
is material if it "goes to the essence of the contract." Neptune
Research & Dev., Inc., v. Teknics Indus. Sys., Inc., 235 N.J.
Super. 522, 531 (App. Div. 1989) (quoting Ross Sys. v. Linden
Dari-Delite, Inc., 35 N.J. 329, 341 (1961)). Whether a breach is
material is a question of fact. Murphy v. Implicito, 392 N.J.
Super. 245, 265 (App. Div. 2007); Magnet Res., Inc. v. Summit MRI,
Inc., 318 N.J. Super. 275, 286 (App. Div. 1998).
"[I]f during the course of performance one party fails to
perform essential obligations under the contract, he may be
considered to have committed a material breach and the other party
may elect to terminate it." Ingrassia Constr. Co., Inc. v. Vernon
Twp. Bd. of Educ., 345 N.J. Super. 130, 136-37 (App. Div. 2001)
(citation and internal quotation marks omitted). The key question
8 A-2210-15T3
is whether the breach affected the ultimate goal of the contract
only tangentially, or whether it "goes to the essence of a
contract." Neptune Research, supra, 235 N.J. Super. at 531(citation omitted). For breaches that are not "material," the
duty of both parties to perform remains intact. Magnet Res.,
Inc., supra, 318 N.J. Super. at 285.
We have described a material breach as:
Where a contract calls for a series of acts
over a long term, a material breach may arise
upon a single occurrence or consistent
recurrences which tend to "defeat the purpose
of the contract." . . . In applying the test
of materiality to such contracts a court
should evaluate "the ratio quantitatively
which the breach bears to the contract as a
whole, and secondly the degree of probability
or improbability that such a breach will be
repeated."
[Id. at 286 (quoting Medivox Prods., Inc. v.
Hoffmann-La Roche, Inc., 107 N.J. Super. 47,
59 (Law Div. 1969))].
The Restatement (Second) of Contracts § 241 (1981) sets forth the
following criteria to determine whether a breach is material:
(a) the extent to which the injured party will
be deprived of the benefit which he reasonably
expected;
(b) the extent to which the injured party can
be adequately compensated for the part of that
benefit of which he will be deprived;
(c) the extent to which the party failing to
perform or to offer to perform will suffer
forfeiture;
9 A-2210-15T3
(d) the likelihood that the party failing to
perform or to offer to perform will cure his
failure, taking account of all the
circumstances including any reasonable
assurances;
(e) the extent to which the behavior of the
party failing to perform or to offer to
perform comports with standards of good faith
and fair dealing.
Here, the judge addressed the issue of the materiality of
plaintiff's failure to make a timely deposit when addressing
defendant's motion for a directed verdict:
With respect to the deposit, there is
case law in this jurisdiction that would
indicate that the failure to provide a deposit
would not be a material breach of the contract
that would allow for the cancellation of a
contract for the sale of property, especially
in a situation like this, where there was
obviously a mistake made on [] the contract,
which indicates that the deposit of [$75,000]
was previously paid. Everyone, I guess,
believed that that, in fact, was done. And
it wasn't until, I guess, November of that
year, when there was an attempt to cancel this
contract that the parties actually recognized
or realized that no deposit was [] provided.
The [c]ourt notes and [] gives great
importance to the fact that Mr. Greco, [] as
the attorney for [defendant] in this case,
never requested the deposit, even though
obviously, as the attorney for the seller,
also has the obligation to review the contract
terms. And interestingly enough, in this
case, there was [] no request for the deposit.
So I don’t think the failure of the deposit
would provide this [c]ourt or obligate this
[c]ourt to find that there was a material
breach that would allow for cancellation of
10 A-2210-15T3
the contract. But at this juncture, this
[c]ourt would not enter judgment in favor of
[] the plaintiff on that basis alone.
Furthermore, at the conclusion of the bench trial, the judge held
in his oral opinion:
I don’t think there's any evidence here that
would support this [c]ourt denying or voiding
this contract simply because [] of a mistake
made with respect to this deposit. No one
cared about the deposit; no one asked about
it; no one questioned it. Mr. La Paglia,
unfortunately, made a mistake with respect to
this contract. He assumed that [] the deposit
was made when it was not made. Mr. Greco also
made a mistake. He assumed somebody had the
deposit or frankly, he didn’t really
understand what the provision said. But
neither of the attorneys, both highly
respected in the community and experienced
real estate practioners, gave a damn about the
deposit, right? No one cared because the deal
was we're trying to resolve these title
issues. The deposit, I'm sure is there
somewhere and if it's not there, we'll get it
there and nobody cared about it.
We agree that plaintiff's failure to make a timely deposit
in accordance with the terms of the sales contract did not
constitute a material breach, as it did not defeat the overall
purpose of the contract. See Magnet Res., Inc., supra, 318 N.J.
Super. at 286. Furthermore, plaintiff remedied the breach after
notice. See id. at 287. The essence of the contract was the sale
of the property to plaintiff for the agreed upon price of $750,000
for which she remained ready and willing to perform. See Stamato
11 A-2210-15T3
v. Agamie, 24 N.J. 309, 316 (1957) (citation omitted) ("[T]he
general rule is that he who seeks performance of a contract for
the conveyance of land must show himself ready, desirous, prompt,
and eager to perform the contract on his part.")
Concededly, it would have been optimal had plaintiff promptly
made the deposit. Indeed, under other circumstances, plaintiff's
failure to provide payment may have defeated her claim for specific
performance. However, when considered in context, the oversight
in making timely payment of the deposit did not impact upon
plaintiff's ability to perform her obligation to close title nor
did it otherwise disturb the contract's equilibrium.
We next turn to the mortgage contingency clause. In
addressing defendant's arguments regarding the mortgage
contingency clause, the judge concluded that there was no written
notice requirement under the express terms of the contract:
In order to decide this case, the [c]ourt
must determine the meaning of paragraph 6 of
the [s]ales [c]ontract. To determine the
meaning of the terms of an agreement by the
objective manifestations of the parties'
intent, the terms of the contract must be
given their "plain and ordinary meaning."
Nester v. O'Donnell, 301 N.J. Super. 198, 210
(App. Div. 1997). "A writing is interpreted
as a whole and all writings forming part of
the same transaction are interpreted
together." Barco Urban Renewal Corp. v.
Housing Auth. of Atlantic City, 674 F.2d 1001,
1009 (3d Cir. 1982) (citing Restatement
(Second) of Contracts § 202(2) (1981)). A
12 A-2210-15T3
"court should not torture the language of [a
contract] to create ambiguity." Stiefel v.
Bayly, Martin & Fay, Inc., 242 N.J. Super.
643, 651[ (App. Div. ]1990). "In the quest
for the common intention of the parties to a
contract, the court must consider the
relations of the parties, the attendant
circumstances, and the objects they were
trying to attain." Anthony L. Petters Diner,
Inc. v. Stellakis, [202 N.J. Super. 11, 28]
(App. Div. 1985). In the interpretation of a
contract, the court's goal is to ascertain the
intention of the parties as revealed not only
by the language used but also with reference
to the surrounding circumstances and the
relationships of the parties at the time it
was entered into. Driscoll Constr. Co.[,
Inc.] v. N.J. Dep't of Transp., 371 N.J.
Super. 304, 313 (App. Div. 2004); Graziano v.
Grant, 326 N.J. Super. 328, 342 (App. Div.
1999).
Defendant's argument that the
[p]laintiff failed to provide timely written
notice of the mortgage commitment or of her
election to proceed without mortgage financing
fails simply because [p]laintiff was not
required to provide such notice. See Schultz
v. Topakyan, 193 N.J. Super. 550, 554-53 (App.
Div.[]) ([c]ourt refused to imply a
requirement of written notice of commitment
within the contingency period of a mortgage
contingency clause), [certif. denied, 99 N.J.
207 (1984)]; Gross v. Lasko, 338 N.J. Super.
476, 484-85 (App. Div. 2001) ([w]here there
is no specific provision requiring a buyer to
notify a seller in writing of buyer[']s
decision to waive the mortgage contingency
clause, the [c]ourt refused to imply one[).]
Here, there is no specific provision in the
contract requiring the [p]laintiff to give
written notice of either, a loan commitment
or an intent to proceed without mortgage
financing.
13 A-2210-15T3
In arguing that written notice is
required, [d]efendant points to paragraph 29
of the contract which specifies that "[a]ll
notices under this contract must be in
writing." However, while other clauses in the
contract may refer to "notice," there is no
such language in the mortgage contingency
clause. Like the courts in Schultz and Gross,
this [c]ourt will not infer such a requirement
from the language in this contract. To imply
a requirement of written notice in this clause
would require this [c]ourt to rewrite the
contract to include a written notice
requirement that was never agreed to. "It is
not the function of any court to make a better
contract for the parties by supplying terms
that have not been agreed upon." [Graziano,
supra, 326 N.J. Super. at 342]; Schenck v. HJI
Assocs., 295 N.J. Super. 445, 450 (App. Div.
1996). "Where the terms of a contract are
clear, the court must enforce it as written
and not make a more advantageous contract for
either party." [Gross, supra, 338 N.J. Super.
at 486.] The mortgage contingency clause in
this case is clear and unambiguous. There
clearly is no written notice requirement, and
this [c]ourt will not imply one to give a
better contract than that intended by the
[d]efendant.
In any event, the competent evidence
demonstrates that the [d]efendant had actual
notice of the [p]laintiff's election to
proceed without mortgage financing. Both
parties testified that during a meeting in
July or August 2014, the [p]laintiff told the
[d]efendant that she intended to close without
mortgage financing and that she had the cash
available to consummate the sale. Under the
circumstances the [c]ourt finds that the
[p]laintiff complied with her obligations
under the contract. The [c]ourt further finds
that the seller had no lawful right to
terminate the contract and refuse to close
title.
14 A-2210-15T3
In construing a contract, "[t]he court makes the
determination whether a contractual term is clear or ambiguous."
Schor v. FMS Fin. Corp., 357 N.J. Super. 185, 191 (App. Div. 2002)
(citing Nester, supra, 301 N.J. Super. at 210). When the term is
clear, a court is required to enforce the contract as written,
giving the words their plain, ordinary meaning. Gibson v.
Callaghan, 158 N.J. 662, 670 (1999). However, when the words are
susceptible to more than one reasonable interpretation, the court
must examine the document as a whole in resolving the ambiguity
and must consider other external evidence, such as the relationship
of the parties, the contractual objectives, and other attendant
circumstances. Nester, supra, 301 N.J. Super. at 210. Still, the
contractual language should not be tortured to create ambiguity.
Ibid.
As the judge found, the terms of the contract did not call
for written notice of plaintiff's election to proceed without the
loan, it merely required the parties to agree, which they did.
Since defendant had notice of plaintiff's election, the judge held
plaintiff complied with the contract's terms. To be sure, had the
judge imposed a requirement of written notice not required by the
plain language of the contract, it would have been erroneous. See
Gross, supra, 338 N.J. Super. at 484-86.
15 A-2210-15T3
We review the grant of specific performance for an abuse of
discretion. Estate of Cohen ex rel. Perelman v. Booth Computers,
421 N.J. Super. 134, 157 (App. Div.), certif. denied, 208 N.J. 370(2011). While the "abuse of discretion standard defies precise
definition," we may find an abuse of discretion when a decision
is "made without a rational explanation," "rest[s] on an
impermissible basis," or was "based upon a consideration of
irrelevant or inappropriate factors." Flagg v. Essex Cty.
Prosecutor, 171 N.J. 561, 571 (2002) (internal quotation marks and
citations omitted).
Specific performance is an equitable remedy that operates to
compel one party to unwillingly transact with another and
therefore, should be granted in only exceptional circumstances.
See Centex Homes Corp. v. Boag, 128 N.J. Super. 385, 392-93 (Ch.
Div. 1974) (citation omitted) (stating that "considerable caution
should be used in decreeing the specific performance of agreements,
and the court is bound to see that it really does the complete
justice which it aims at, and which is the ground of its
jurisdiction"). However, "[t]here is a virtual presumption,
because of the uniqueness of land and the consequent inadequacy
of monetary damages, that specific performance is the . . .
appropriate remedy for . . . [a] breach of the contract to convey"
16 A-2210-15T3
real property. Friendship Manor, Inc. v. Greiman, 244 N.J. Super.
104, 113 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991).
To establish a right to specific performance, the party
seeking the relief must demonstrate that the contract in question
is valid and enforceable at law, and that the terms of the contract
are clear. Marioni v. 94 Broadway, Inc., 374 N.J. Super. 588,
598-99 (App. Div.), certif. denied, 183 N.J. 591 (2005). Thus,
even if the parties had an enforceable contract, the remedy of
specific performance is not automatic, as the decision is a
discretionary one based on principles of equity. Id. at 599
("[T]he right to specific performance turns not only on whether
plaintiff has demonstrated a right to legal relief but also whether
the performance of the contract represents an equitable result.").
Specific performance is infused with equitable
considerations; the applicant "must stand in conscientious
relation to his adversary; his conduct in the matter must have
been fair, just and equitable, not sharp or aiming at unfair
advantage." Stehr v. Sawyer, 40 N.J. 352, 357 (1963). Further,
"[t]he long established rule is that the party who 'seeks
performance of a contract for the conveyance of land must show
himself ready, desirous, prompt and eager to perform the contract
on his part.'" Ridge Chevrolet-Oldsmobile, Inc. v. Scarano, 238
17 A-2210-15T3
N.J. Super. 149, 156 (App. Div. 1990) (quoting Stamato, supra, 24
N.J. at 316).
The judge found the conditions requisite to satisfy specific
performance were met:
Evaluation of the equities in this case
favor the [p]laintiff. First, the parties
were both represented by competent attorneys,
each with many years of experience in handling
residential and commercial real estate
closings. They reviewed and approved the
final terms of the sales contract and neither
attorney sought to modify or change the
mortgage contingency clause so as to require
the type of written notice the [d]efendant now
seeks to enforce. Second, from the date of
execution of the contract on June 7, 2014[,]
until the Notice of Termination was served on
November 24, 2014, neither party suggested
that there was an issue regarding the mortgage
contingency clause. In fact the closing was
proceeding in its normal course, with a loan
application having been made and title work
having been ordered. Prior to the receipt of
the termination notice, neither [p]laintiff
nor her attorney ever suspected that the
[d]efendant was concerned that a loan
commitment was not received within the time
specified in the contract. In fact, it is
reasonable to assume that the [d]efendant did
not really care about said contingency because
[p]laintiff had expressed her intent to close
without mortgage financing sometime in July
or August 2014. Thus, it seems abundantly
clear that the [p]laintiff was lulled into
believing that no further notices were needed
and that the closing would take place when the
title company completed its due diligence.
Third, it is clear from the evidence that the
real reason for seeking to terminate the
contract was because the [d]efendant believed
he could sell the property to another buyer
18 A-2210-15T3
for substantially more than the $750,000
[p]laintiff had offered. The evidence clearly
demonstrates that prior to sending the notice
terminating contract, the [d]efendant had
negotiated a new listing agreement and was
marketing the property for sale. In fact, the
[d]efendant would later enter into a new
contract for [$1 million]. Defendant's
conduct could be interpreted as violating the
implied covenant of good faith and fair
dealing. In this regard, our Court[] ha[s]
held that "[e]very contract [entered into
under the laws of this state] contains an
implied covenant of good faith and fair
dealing." Kalogeras v. 239 Broad Ave.,
L.L.C., 202 N.J. 349, 366[] (2010) [(citation
omitted)]. "Good faith" imports "standards
of decency, fairness or reasonableness" and
"requires a party to refrain from 'destroying
or injuring the right of the other party to
receive' its contractual benefits." Iliadis
v. Wal-Mart Stores, Inc., 191 N.J. 88, 109-
10[] (2007). Finally, the [c]ourt concludes
that an order compelling performance will not
be harsh or oppressive to the [d]efendant. He
is not being denied what he bargained for, the
sale of his property for the total purchase
price of $750,000. On the other hand,
[p]laintiff would be denied what she has
bargained for, the purchase of real property,
for a reasonable price, that she intends to
rehabilitate for residential and commercial
use. Under the circumstances[,] this [c]ourt
must conclude that it would be unfair and
unjust to permit the [d]efendant to
unilaterally terminate a contract for a breach
of the mortgage contingency clause without
affording the [p]laintiff an opportunity to
cure the alleged breach within a reasonable
period of time. This [c]ourt opts "to apply
reasonableness to the situation" and concludes
that the oral notice given to the [d]efendant
was sufficient compliance with the mortgage
contingency provision of the contract.
Defendant must therefore be compelled to
19 A-2210-15T3
comply with the terms of the contract and
deliver a deed at the time and place scheduled
for closing. To do otherwise would result in
the forfeiture of the [p]laintiff's rights, a
result abhorred by equity. Shultz, supra, 193
N.J. Super. at 553[] (citing Bertrand v.
Jones[,] 58 N.J. Super. 273, 281 (App. Div.
1959)).
In awarding specific performance, we are satisfied the judge
exercised appropriate discretion by aptly weighing the equities
and determining they aligned with plaintiff. See Stehr, supra,40 N.J. at 357. We discern no error in the judge's determination
the parties entered into a valid and enforceable contract and that
the enforcement of the contract would not be "harsh or oppressive."
See Marioni, supra, 374 N.J. Super. at 599 (citation omitted).5
Finally, we have considered defendant's argument relating to
the dismissal of the counterclaim in light of the record and
conclude it lacks sufficient merit to warrant consideration in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
5
In reaching our decision, we reject as wholly without merit
defendant's argument that enforcement of the contract was
"oppressive" based upon his loss of $250,000.
20 A-2210-15T3