MAPLE STREET DEVELOPERS, LLC VS. SAMUEL PINTER & ASSOCIATES (L-2413-15, 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NOT FOR PUBLICATION WITHOUT THE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-2903-17T3
MAPLE STREET
DEVELOPERS, LLC,
Plaintiff-Appellant/
Cross-Respondent,
v.
SAMUEL PINTER &
ASSOCIATES, SAMUEL
PINTER, individually, and L.P.
MAPLE REALTY, LLC,
Defendants-Respondents/
Cross-Appellants.
Argued telephonically August 28, 2019 –
Decided September 24, 2019
Before Judges Alvarez and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-2413-15.
Avi Rosengarten argued the cause for appellant/cross-
respondent.
Joseph Rakofsky argued the cause for
respondents/cross-appellants.
PER CURIAM
Plaintiff Maple Street Developers, LLC, the prospective purchaser in a
$2,000,000 real estate transaction, appeals from a Law Division judge's denial
of reconsideration of the judgment rendered after a bench trial. The judgment
was entered November 9, 2017, and the judge incorporated his written decision
in the January 25, 2018 denial of reconsideration. After trial, the judge
concluded that defendants, prospective sellers Samuel Pinter & Associates,
Samuel Pinter (individually), and L.P. Maple Street Realty, LLC, breached the
parties' agreement for the sale of real estate. He awarded $100,000 in
compensatory damages, plus out-of-pocket expenses incurred by plaintiff as a
result of defendant's breach of the contract. The judge also ordered the return
of plaintiff's escrowed $125,000, the remaining amount of the contract deposit.
Defendants cross-appeal. We affirm.
Based mainly on the credibility of witnesses, the judge found the
following circumstances in his initial decision. Unless otherwise indicated, all
quoted material is taken from the November 9, 2017 opinion.
Plaintiff, a business entity owned by Etta Ostreicher, entered into the
agreement of sale on September 16, 2014, for the acquisition of real estate in
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Jersey City. Plaintiff paid $200,000 as a security deposit, balance of the
purchase price due at closing. Among other things, the agreement made time of
the essence and required a clean environmental assessment. The agreement also
called for the seller to deliver marketable title.
The contract contained a $100,000 liquidated damages provision —
payable by plaintiff to defendant in the event of a breach. No mention was made
of liquidated damages in the event of a breach by defendants, unsurprising given
that ordinarily specific performance is the remedy for a breach by the seller.
By December 2014, the sale had not been consummated, the "phase one"
environmental inspection had not been completed, and the record is silent, other
than Ostreicher's assertion to that effect, as to whether plaintiff would have been
able to finance the purchase. As the judge said, this was "an arguably critically
important condition in a $2,000,000 contract without a financing contingency." 1
On December 30, 2014, defendants' principal, Samuel Pinter, who
testified on behalf of the company, and Ostreicher, amended the contract. The
relevant language, drafted by Ostreicher's attorney, stated:
Purchaser shall, no later than January 30, 2015,
TIME BEING OF THE ESSENCE, close on the
Premises . . . [i]n the event the Purchaser fails to close
1
When the contract was extended, Ostreicher's attorney had $891,000 in
escrow, but no other proofs were produced regarding financing.
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on or before January 30, 2015, due to no fault of the
Seller, the Contract shall be . . . terminated and neither
party shall have any claims against the other.
Ostreicher released $75,000 from the $200,000 deposit as "consideration for the
amendment." Time was again made of the essence, and the closing date fixed
for January 30, 2015.
In January, Ostreicher began to experience "non-specific suspicions"
regarding defendants' ability to convey clear title. While conducting her own
independent online title research, she discovered a significant deed restriction.
When Jersey City Redevelopment Agency (JCRA) conveyed the property to
defendants in 2009, the conveyance was subject to a rider stating that
the restrictions, covenants, and conditions imposed by
Section 2.12, 5.02, Article VI, and 7.02 of the
Redevelopment Agreement between LMD #13 Urban
Renewal, LLC (predecessor to Grantee) and the
Grantor, dated November 13, 2006, copies of which
Sections are annexed hereto, shall hereby be
incorporated into and become a part of this Deed as if
fully set forth herein.
The relevant sections of the Redevelopment Agreement are not included in
either appendix. It is, however, undisputed that the rider obligated defendants
to obtain the JCRA's express written approval before a transfer to a new owner.
Missing from the record is an explanation for the omission of the deed restriction
from the initial title report.
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Ostreicher notified her real estate attorney about the restriction. He in
turn notified Pinter. Pinter offered to refund the deposit, but Ostreicher refused
because she wished to proceed with the project. The events, not altogether clear
to this point, become even muddier.
Ostreicher testified that she then hired a second attorney, who on April 6,
2015, met with the JCRA's counsel to learn about the necessary process for the
approval. The record does not describe any additional action she took to obtain
JCRA review of the proposed sale.
Pinter testified he called the agency repeatedly "to facilitate Ostreicher's
application," and on February 20, 2015, Pinter sent the JCRA an email
forwarding the contract. Pinter also said prior to being informed by Ostreicher's
real estate attorney, he was unaware of the deed restriction. He claimed he
owned seventy or eighty other parcels of real estate at the time.
Pinter's son, who had in December 2014, conveyed Pinter's concern to
Ostreicher that the sale was never going to occur, again began to communicate
with her directly. He repeatedly emailed her inquiring about her intentions.
Ostreicher responded that her redevelopment counsel "was waiting 'to get on
[the] calendar for the designation.'"
Meanwhile:
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On May 6, 2015, Maple Realty received an offer
for $2.75 million from William Rosato ("Rosato"),
owner of MC Maple, LLC ("MC Maple"). [Pinter's
son] emailed Ostreicher to inform her of the offer. He
told her that they would move forward with the new
buyer as soon as possible. He also indicated that
"[they] needed from [her] attorney a three or four
sentence letter" indicating that she was approved as a
redeveloper by the JCRA. If the letter was not received
by Friday, Ostreicher's deposit would be refunded and
the contract would be voided. She responded that she
was doing her job and that [Pinter's son] still had to
send a consent letter to the JCRA.
On May 11, 2015, Ostreicher received notice by
email to void the contract from Pinter's assistant . . . .
The notification was not hand delivered or sent by
overnight mail to Ostreicher as required in the contract.
This deviation from the contract is not dispositive as
the conduct of the parties evinced their consent to
communicate in multiple ways, including email. They
also often acted without the assistance of counsel.
Ostreicher hired litigation counsel . . . . She
continued trying to get approval as a developer. By
mid-May, the JCRA had not contacted her to fill out an
application or questionnaire.
On May 27, 2015, Rosato's attorneys, Connell
Foley, sent a consent letter to Pinter for submission to
the JCRA on behalf of Rosato and MC Maple. MC
Maple purchased 81 Monitor in October of 2015. At
the closing, the parties agreed to escrow $750,000 from
the sale proceeds because of plaintiff's pending
complaint.
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After discussing, one by one, plaintiff's causes of action and defendants'
defenses, the judge found merit only to the claim defendants had breached the
contract. He concluded the breach occurred because they could not deliver
marketable title as required under the express terms of the contract, in which the
deed restriction was not even mentioned. The judge found that since the third-
party purchaser had invested over a million dollars on infrastructure and other
site work on the subject parcel, specific performance was not an appropriate
remedy.2
The judge also noted that although a portion of the incidental expenses
incurred by plaintiff were quantified during the trial, namely, for the cost of the
environmental report and boundary survey, legal expenses incurred by plaintiff
for the preparation of the contract and for title services were not quantified. The
court ultimately settled on $100,000 as compensatory damages, the refund of
the $125,000 escrow balance, plus reimbursement of out-of-pocket expenses,
for the breach. He found plaintiff's claim that $750,000 was the appropriate
measure of damages — the difference between the $2,000,000 purchase price
Ostreicher was willing to pay and the $2,750,000 price paid by the third-party
2
Plaintiff's initial request to enjoin the sale to the third party had been denied
by another judge.
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buyer —too speculative. In the judge's view, plaintiff presented very limited
proofs regarding damages. Reading between the lines of his decision, because
of the speculative nature of damages suffered by plaintiff as a result of
defendant's inability to convey clear title, and her seeming inability to schedule
closing, the amount in controversy for defendant's breach was reasonably
determined to be $100,000.
The judge reiterated the standard of review for reconsideration motions in
his January 25, 2018 decision. See R. 4:49-2. He said that for the reasons stated
in his original opinion, he could not fix
the quantum of damages [at] simply the price difference
between the parties' contract, and the contract price
between defendant and the subsequent purchaser. The
court could not rely upon speculative, unascertainable
and insufficient proofs to rotely award plaintiff that
amount.
Despite the speculative nature of plaintiff's
damage claim, and the incomplete proofs adduced at
trial, it would have been inequitable to deny plaintiff
any recovery. As noted in the trial decision, a party to
a contract cannot breach a contract and simply return
the deposit to preclude any other recovery.
The judge accepted plaintiff's expert's testimony that the permitted density
for the subject property increased after the contract was terminated. He
reiterated his earlier decision that plaintiff was entitled to the sum seller would
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have received if purchaser breached plus the out-of-pocket expenses, and the
return of her contract deposit balance.
Plaintiff on appeal raises the following points:
POINT I – THE LOWER COURT ERRED IN
DETERMINING THAT THE CONTRACT WAS
TERMINATED BY NOTICE NOT PERMITTED BY
THE CONTRACT.
POINT II – THE LOWER COURT ERRED
DETERMINING THAT PLAINTIFF'S MEASURE OF
DAMAGES WAS SPECULATIVE AND
UNASCERTAINABLE.
Defendants on cross-appeal raise the following points:
POINT 1
DECISION SHOULD BE MODIFIED AND
JUDGMENT AGAINST CROSS APPELLANTS-
RESPONDENTS SHOULD BE REVERSED
BECAUSE APPELLANT-CROSS RESPONDENT
BREACHED, TWICE, THE "TIME IS OF THE
ESSENCE" CLAUSE IN THE SALES CONTRACT
AND, CONSEQUENTLY, BREACHED THE
CONTRACT, TWICE, YET, WAS IMPROPERLY
AWARDED WITH A $111,965.00 VERDICT BY
JUDGE D'ALESSANDRO.
POINT 2
DECISION SHOULD BE MODIFIED AND
JUDGMENT AGAINST CROSS APPELLANTS-
RESPONDENTS SHOULD BE REVERSED
BECAUSE THE TRIAL JUDGE'S ABUSE OF
DISCRETION, REFLECTED IN HIS HONOR'S
DECISION TO REFORM, UNILATERALLY, A
SALES CONTRACT, AND IMPOSE,
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UNILATERALLY, A LIQUIDATED DAMAGES
PROVISION AGAINST THE SELLER, WHEN IT IS
IRREFUTABLE THAT THE SALES CONTRACT
(DULY NEGOTIATED BETWEEN THE PARTIES)
CONTEMPLATED A LIQUIDATED DAMAGES
CLAUSE TO BE CHARGED ONLY AGAINST THE
BUYER, CLEARLY PREJUDICED CROSS
APPELLANTS-RESPONDENTS, WHICH WILL
RESULT IN EXTREME HARM TO CROSS
APPELLANTS-RESPONDENTS, IF PERMITTED TO
STAND.
POINT 3
DECISION SHOULD BE MODIFIED AND
JUDGMENT AGAINST CROSS APPELLANTS-
RESPONDENTS SHOULD BE REVERSED
BECAUSE THE TRIAL JUDGE'S ABUSE OF
DISCRETION, REFLECTED IN HIS HONOR'S
DECISION TO IMPOSE LIQUIDATED DAMAGES
AGAINST DEFENDANTS, EVEN THOUGH THE
RECORD IS CLEAR THAT PLAINTIFF'S
INADEQUATE FINANCES RESULTED IN HER
REFUSAL TO REQUEST JCRA APPROVAL,
WHICH CAUSED HER, TWICE, TO BREACH THE
"TIME IS OF THE ESSENCE" CLAUSE, IS
PREJUDICIAL ERROR, WHICH WILL RESULT IN
EXTREME HARM TO CROSS APPELLANT-
RESPONDENTS, IF PERMITTED TO STAND.
POINT 4
DECISION SHOULD BE MODIFIED AND
JUDGMENT AGAINST CROSS APPELLANTS-
RESPONDENTS SHOULD BE REVERSED
BECAUSE THE TRIAL JUDGE'S ABUSE OF
DISCRETION, REFLECTED IN HIS HONOR'S
DECISION TO REFORM, UNILATERALLY, A
SALES CONTRACT, AND IMPOSE,
UNILATERALLY, A LIQUIDATED DAMAGES
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PROVISION AGAINST THE SELLER (EVEN
THOUGH THE CONTRACT WAS ALREADY DULY
NEGOTIATED BETWEEN THE PARTIES) AND
SPECULATE AS TO WHAT THE LOST FUTURE
PROFITS WOULD HAVE BEEN FOR PLAINTIFF
HAD SHE TAKEN TITLE (EVEN THOUGH
PLAINTIFF, TWICE, BREACHED THE "TIME IS OF
THE ESSENCE" CLAUSE), CLEARLY
PREJUDICED CROSS APPELLANTS-
RESPONDENTS, WHICH WILL RESULT IN
EXTREME HARM TO CROSS APPELLANTS-
RESPONDENTS, IF PERMITTED TO STAND.
POINT 5
DECISION SHOULD BE MODIFIED AND
JUDGMENT AGAINST CROSS APPELLANTS-
RESPONDENTS SHOULD BE REVERSED
BECAUSE THE TRIAL JUDGE'S ABUSE OF
DISCRETION, REFLECTED IN HIS HONOR'S
DECISION TO IMPOSE, UNILATERALLY, A
LIQUIDATED DAMAGES PROVISION AGAINST
THE SELLER, EVEN THOUGH COUNSEL FOR
APPELLANT-CROSS RESPONDENT ADMITTED
(WHEN HE REALIZED HE WAS IN POSSESSION
OF CRUCIAL EVIDENCE COUNSEL PREVIOUSLY
ALLEGED DID NOT EXIST), "THERE IS NO WAY
I WOULD HAVE BROUGHT THIS TO TRIAL IF I
HAD RECEIVED THIS LETTER," CLEARLY
PREJUDICED CROSS APPELLANTS-
RESPONDENTS, WHICH WILL RESULT IN
EXTREME HARM TO CROSS APPELLANTS-
RESPONDENTS, IF PERMITTED TO STAND.
POINT 6
DECISION SHOULD BE MODIFIED AND
JUDGMENT AGAINST CROSS APPELLANTS-
RESPONDENTS SHOULD BE REVERSED
BECAUSE THE TRIAL JUDGE'S ABUSE OF
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DISCRETION, REFLECTED IN HIS HONOR'S
DETERMINATION THAT NEITHER THE
ORIGINAL CONTRACT, NOR THE AMENDMENT,
REQUIRED PROOF OF FUNDS TO CLOSE, EVEN
THOUGH THE RECORD IS COMPLETELY SILENT
WITH RESPECT TO WHETHER PROOF OF FUNDS
WERE REQUIRED, IS PREJUDICIAL ERROR,
WHICH WILL RESULT IN EXTREME HARM TO
CROSS APPELLANT-RESPONDENTS, IF
PERMITTED TO STAND.
POINT 7
DECISION SHOULD BE MODIFIED AND
JUDGMENT AGAINST CROSS APPELLANTS-
RESPONDENTS SHOULD BE REVERSED
BECAUSE THE TRIAL JUDGE'S ABUSE OF
DISCRETION, REFLECTED IN HIS HONOR'S
DECISION TO PERMIT SO-CALLED EXPERT,
OSWIN E. HADLEY, TO TESTIFY THAT
APPELLANT-CROSS RESPONDENT WOULD
HAVE BEEN APPROVED BY THE JCRA IS
SPECULATIVE AND NET OPINION AND
CONSTITUTES PREJUDICIAL ERROR, WHICH
WILL RESULT IN EXTREME HARM TO CROSS
APPELLANT-RESPONDENTS, IF PERMITTED TO
STAND.
POINT 8
DECISION SHOULD BE MODIFIED AND
JUDGMENT AGAINST CROSS APPELLANTS-
RESPONDENTS SHOULD BE REVERSED
BECAUSE THE TRIAL JUDGE'S ABUSE OF
DISCRETION, REFLECTED IN HIS HONOR'S
DECISION TO PERMIT SO-CALLED EXPERT,
OSWIN E. HADLEY, TO TESTIFY EVEN THOUGH
MR. HADLEY WAS THE LAW PARTNER OF
COUNSEL FOR PLAINTIFF AND HAD A
FINANCIAL OUTCOME IN THE CASE,
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CONSTITUTES PREJUDICIAL ERROR, WHICH
WILL RESULT IN EXTREME HARM TO CROSS
APPELLANT-RESPONDENTS, IF PERMITTED TO
STAND.
POINT 9
DECISION SHOULD BE MODIFIED AND
JUDGMENT AGAINST CROSS APPELLANTS-
RESPONDENTS SHOULD BE REVERSED
BECAUSE THE TRIAL JUDGE'S ABUSE OF
DISCRETION, REFLECTED IN HIS HONOR'S
DECISION TO REFUSE TO RECALL APPELLANT-
CROSS RESPONDENT TO THE STAND TO
DETERMINE WHEN AND HOW SHE LEARNED OF
THE DEED RESTRICTION IS PREJUDICIAL
ERROR, WHICH WILL RESULT IN EXTREME
HARM TO CROSS APPELLANT-RESPONDENTS,
IF PERMITTED TO STAND.
POINT 10
DECISION SHOULD BE MODIFIED AND
JUDGMENT AGAINST CROSS APPELLANTS-
RESPONDENTS SHOULD BE REVERSED "IN THE
INTEREST OF JUSTICE," AS AN APPELLATE
REVIEW AND GUIDANCE ARE IMMEDIATELY
NECESSARY, OTHERWISE THE RULING BELOW,
IF PERMITTED TO STAND, WILL IRREPARABLY
INJURE CROSS APPELLANT RESPONDENTS.
POINT 11
DECISION SHOULD BE MODIFIED AND
JUDGMENT AGAINST CROSS APPELLANTS-
RESPONDENTS SHOULD BE REVERSED
BECAUSE THERE IS SUFFICIENT EVIDENCE TO
DEMONSTRATE AN OBJECTIVELY
REASONABLE DOUBT AS TO THE TRIAL
COURT'S IMPARTIALITY BECAUSE THE
COURT'S RULING WAS BASED ON ARBITRARY
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GROUNDS AND THE PUNITIVE MEASURES
IMPOSED UPON CROSS APPELLANT-
RESPONDENTS ARE UNREASONABLE AND
DISPROPORTIONATE.
POINT 12
THE LOWER COURT NEITHER ERRED IN
DETERMINING THAT THE CONTRACT WAS
TERMINATED BY NOTICE NOT PERMITTED BY
THE CONTRACT AND THAT PLAINTIFF'S
MEASURE OF DAMAGES WAS SPECULATIVE
AND UNASCERTAINABLE.
POINT 13
THIS HONORABLE COURT SHOULD PROVIDE
RELIEF TO CROSS APPELLANTS-RESPONDENTS
PURSUANT TO RULE 4:50-1, WHICH
SPECIFICALLY CONTEMPLATES "FRAUD" AND
"MISREPRESENTATION" AS BASES FOR RELIEF,
TO AVOID A "GRAVE INJUSTICE."
I.
Plaintiff's first point that the contract was terminated by improper notice
does not warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E). By
their conduct, the parties modified the agreement with regard to notices. They
accepted communications from each other in a variety of ways, held themselves
bound to those communications, and had actual notice of what was taking place.
Our standard of review for fact findings by a judge presiding over a bench
trial is well-established. We review the matter to determine whether they are
supported by substantial credible evidence in the record. Rova Farms Resort,
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Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974). If the facts are supported
by the record, we then ask whether the judge properly applied the law. We owe
no deference to the trial judge's interpretation of the law, or to his application of
the law to the facts and review them de novo. Manalapan Realty L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Compensatory damages, also known as expectation damages, are designed
to "put the innocent party into the position he or she would have achieved had
the contract been completed." Totaro, Duffy, Cannova & Co., L.L.C. v. Lane,
Middleton & Co., L.L.C., 191 N.J. 1, 12 (2007). Because this type of damage
is directly related to the breach, compensatory relief is awarded based on the
parties' reasonable expectations, and a defendant is not chargeable for an
unforeseeable loss. Donovan v. Bachstadt, 91 N.J. 434, 444 (1982). Similar to
compensatory damages, consequential damages or incidental damages may be
pursued where the injury is more indirect and are also only recoverable if the
damage was reasonably foreseeable at the time the contract was entered into.
George H. Swateck, Inc. v. N. Star Graphics, Inc., 246 N.J. Super. 281, 285
(App. Div. 1991).
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II.
The judge's findings of fact are supported by substantial credible evidence
in the record. Given record support for those findings, it follows that plaintiff
carried her burden of proof, establishing a breach of contract by a preponderance
of the evidence. All plaintiff needed to demonstrate here was that defendant,
despite the representations in the written agreement of sale, was unable to
convey good title.
"To prevail on a breach of contract claim, a party must prove a valid
contract between the parties, the opposing party's failure to perform a defined
obligation under the contract, and [that] the breach caused the claimant to
sustain[] damages." EnviroFinance Grp., LLC v. Envtl. Barrier Co., LLC, 440
N.J. Super. 325, 345 (App. Div. 2015). Clearly the parties had an agreement.
From its inception, however, without JCRA's approval, clear title could not be
conveyed. This was a breach, and after months of pursuing the matter, it came
to naught entitling plaintiff to damages. We therefore also agree with the judge's
conclusion of law.
The question of damages is more difficult. The claim the damages should
be fixed at $750,000 — the difference between the purchase price she agreed to
pay and the third party paid — is not supported by any legal precedent. And the
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basis for the claim is entirely speculative. That Rosato would have paid
$2,750,000 for the property had plaintiff begun to develop the site as she planned
cannot be determined with certainty.
III.
With regard to the cross-appeal — point thirteen has no substance. Rule
4:50-1 addresses post-judgment motions made to the trial court, not issues on
appeal. No further discussion is necessary. See R. 2:11-3(e)(1)(E).
Defendants' cross-appeal points two through nine seem to posit without
substantive explanation that the trial judge's decision, which defendants
characterize as an abuse of discretion, should be reversed because the judgment
will result in "extreme harm" to defendants. We know of no legal doctrine that
warrants review of a bench trial decision on the basis that the judge's purported
alleged abuse of discretion results in extreme harm to a litigant.
The abuse of discretion standard does apply to points seven and eight,
regarding the judge's admission of expert testimony. Evidentiary rulings, such
as whether or not to admit expert testimony, and the weight to be accorded to it,
are reviewed for abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 13 (2008).
Here, however, admission of the testimony was not a major factor in the judge's
decision.
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Point eleven attacks the judge's "impartiality" on the basis that the
evidence raised "an objectively reasonable doubt." We are unaware of anything
in the record, or the law, making this adverse decision, perceived by the litigant
as "arbitrary" and "punitive," a basis for an attack on the judge's impartiality.
No further discussion is warranted on points two through nine, and eleven.
See R. 2:11-3(e)(1)(E).
In points one and twelve, defendants attack the compensatory damages as
being unfounded, characterizing the sum as an improper award of liquidated
damages, and objecting that it was too speculative. Certainly, it would have
been helpful to appellate review if the trial judge had expansively explained his
reasoning for awarding damages in the same amount as the seller would have
received in the event of plaintiff's breach. On the other hand, defendants were
unable to convey clear title to Ostreicher at all relevant times.
Plaintiff invested nearly a year in the purchase of this property, whether
Ostreicher's efforts were as focused as they could have been or not. Some
compensatory damages were certainly appropriate. It is difficult to place a price
tag on the expenditure of time and energy in the negotiations leading to the
contract, and after it was signed. We are also mindful that plaintiff paid $75,000
as consideration for the amendment to the contract. Although the decision to
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award the $100,000 could have been tethered in more comprehensive reasoning,
there is no basis for disturbing the award. Seller could readily anticipate that
buyer would be harmed by many months of ultimately fruitless efforts. The
judge's fact finding on this score is supported by the record. His application of
the law on damages is unobjectionable.
Affirmed.
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