YERUKHAM GELB VS. YOEL OSHRI (DC-001503-19, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-3435-18T1
YERUKHAM GELB,
Plaintiff-Respondent,
v.
YOEL OSHRI, a/k/a
JOEL OSHRI,
Defendant-Appellant.
________________________
Argued telephonically May 18, 2020 –
Decided June 11, 2020
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. DC-001503-19.
Yoel Oshri, appellant, argued the cause pro se.
Lori C. Greenberg argued the cause for respondent
(Lori C. Greenberg & Associates, attorneys; Lori C.
Greenberg, on the brief).
PER CURIAM
In this action claiming unlawful detainer and seeking the ejectment of
defendant Yoel Oshri from residential property (the property) owned by plaintiff
Yerukham Gelb, defendant appeals from a February 25, 2019 Order For Writ of
Possession [and] Ejectment, and a March 29, 2019 order entered by a different
judge denying defendant's motion to disqualify the first judge, dismiss the
complaint, and for a stay of the writ of possession. We find no merit to
defendant's numerous contentions, and we therefore affirm.
The facts pertinent to the cause of action asserted in plaintiff's complaint
for ejectment are undisputed. Defendant mortgaged the property to secure his
payment of a $65,000 promissory note. See PNC Bank, NA v. Yoel Oshri, No.
A-5121-15 (App. Div. Oct. 16, 2018) (slip op. at 2). Defendant defaulted on the
promissory note in January 2013, and PNC Bank, NA filed a foreclosure action
and obtained a final judgment of foreclosure against him. Id. at 3-4. Plaintiff
purchased the property at a November 2017 sheriff sale that was held in
accordance with orders issued by the court in the foreclosure case. Defendant
appealed from the final judgment of foreclosure and other orders entered in the
foreclosure case, and, in our October 2018 opinion, we affirmed the foreclosure
court's judgment and orders. Id. at 9.
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Defendant also sought relief from the final judgment of foreclosure in an
action in the United States District Court for the District of New Je rsey, but he
did not name plaintiff a party in that litigation. On February 1, 2019, the District
Court entered an order denying with prejudice defendant's motion to set aside
the November 2017 sheriff's sale of the property to plaintiff.
Plaintiff recorded the sheriff's sale deed with the Ocean County Clerk on
January 24, 2019. Almost two weeks later, he filed a verified complaint and
order to show cause in the Law Division Special Civil Part alleging he was the
property owner, defendant continued to occupy the property, and defendant
refused to vacate it. 1 Plaintiff alleged he was deprived of the use and possession
of the property by defendant's unlawful detainer of the property in violation of
"N.J.S.A. 2A:39-1 et seq.," and plaintiff sought a judgment for unlawful detainer
and a writ of possession directing the sheriff to remove defendant from the
property.
Defendant does not include in the record on appeal the order to show cause
entered by the court, but there is no dispute the court entered an order requiring
1
Defendant's appendix includes a January 31, 2019 "3-DAY NOTICE TO QUIT
PURSUANT TO N.J.S.A. 2A:35-1" from plaintiff's counsel to defendant
demanding defendant vacate the property by February 3, 2019, because
defendant is "not a tenant, was never a tenant, and [has] no legal right to the
property."
A-3435-18T1
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defendant show cause on February 25, 2019, why the court should not order his
ejectment from the property. Defendant's appendix includes a February 21, 2019
letter he claims he sent to the court in which he acknowledges receipt of the
order to show cause and plaintiff's verified complaint. In his letter, defendant
notes that he filed a motion to dismiss the complaint returnable on March 20,
2019, and he requested an adjournment of the February 25, 2019 return date of
the order to show cause.2
The court did not grant defendant's adjournment request. At the February
25, 2019 proceeding, plaintiff testified he purchased the property at a sheriff's
sale in November 2017, and, with the issuance of this court's October 2018
decision affirming the final judgment of foreclosure, he was authorized to record
the sheriff's sale deed transferring title of the property to him. He also testified
the United States District Court entered the February 1, 2019 order dismissing
with prejudice defendant's challenge to the sheriff's sale.
2
In defendant's appendix on appeal, he includes a copy of a February 21, 2019
"NOTICE OF MOTION TO DISMISS THE COMPLAINT FOR LACK OF
JURISDICTION AND FRAUD UPON THE COURT." The notice of motion
states "[d]efendant will rely upon the within certification and annexed [e]xhibits
in support of this motion," but defendant did not include the purported
certification or exhibits in the record on appeal.
A-3435-18T1
4
Plaintiff further testified defendant was not a tenant and never paid rent;
defendant continued to occupy the property; and defendant refused to vacate it.
Plaintiff requested the court enter an ejectment order requiring defendant vacate
the property. Defendant cross-examined plaintiff about the manner in which
plaintiff funded the purchase of the property and the timing of the payments to
the sheriff to complete the purchase following the sheriff's sale.
After hearing plaintiff's testimony, the court granted defendant's request
for a writ of possession and for ejectment of defendant from the property. The
court's February 25, 2019 order directed defendant vacate the property "pursuant
to N.J.S.A. 2A:35-1 et seq." and provided that, if defendant failed to vacate the
property as directed, defendant could seek a writ of possession from the Special
Civil Part Clerk's Office directing the sheriff remove defendant from the
property.
Defendant subsequently filed a motion to disqualify the trial judge,
dismiss the complaint for lack of jurisdiction and fraud, and stay the writ of
possession. On the return date of the motion, the trial judge was unavailable,
and the motion was heard by the Assignment Judge of the vicinage.
After hearing argument on the motions, the judge explained that following
entry of the final judgment of foreclosure in the PNC Bank, NA action, plaintiff
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purchased the property at a November 2017 sheriff's sale and recorded the deed
in January 2019. The judge also noted that this court affirmed the final judgment
of foreclosure on defendant's appeal, and the United States District Court
dismissed with prejudice defendant's challenge to the validity of the sheriff's
sale of the property to plaintiff. The judge found plaintiff was the owner of the
property and had moved for the ejectment of defendant.
The judge considered defendant's motion in part as one for
reconsideration. The judge found no basis supporting the disqualification of t he
first judge, and determined an action for ejectment could properly proceed, as it
did here, in a summary manner based on the papers submitted as supplemented
by testimony deemed relevant by the court. The judge noted the proceeding
before the first judge was for the purpose of determining the owner of the
property and who was entitled to possession of it. The judge found the record
before the first judge established plaintiff owns the property and defendant has
no right of possession in the property.
The judge concluded there was no basis to reconsider the ejectment order.
The judge rejected defendant's assertions the court lacked jurisdiction, and
found defendant's filing of a lis pendens had no effect on plaintiff's ownership
of the property. In addition, the judge rejected defendant's claim there were
A-3435-18T1
6
defects in the sheriff's sale, noting those issues should have been, and were,
addressed in the foreclosure action. The judge also rejected defendant's claim
he was entitled to a jury trial because defendant did not request a jury trial before
the February 25, 2019 proceeding and the first judge appropriately considered
plaintiff's claims for unlawful detainer and an ejectment order in a summary
proceeding. The court entered an order denying the relief requested in
defendant's motion, but granted a fourteen-day stay of the ejectment to allow
defendant time to move from the property. Defendant subsequently vacated the
property, and appealed from the court's orders.
In his pro se brief, defendant presents the following arguments for our
consideration:
Point 1
Insufficient Service of process. The Plaintiff failed to
serve the Defendant with his Complaint, Order to Show
Cause, and the Summons. Pursuant to Rule 4:4-1 the
Complaint shall be dismissed pursuant to R. 4:37-2(b).
Point 2
Insufficient Service of process. The Plaintiff violated
Rule 4:4-2 when he failed to serve the Defendant with
a proper summons in the form prescribed by Appendix
XXI-A to these rules and therefore shall be dismissed
as a matter of law.
A-3435-18T1
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Point 3
Cognizability. The Plaintiff's Complaint is not
cognizable in the Special Civil Part and therefore shall
be dismissed for lack of jurisdiction as a matter of law.
Point 4
Plaintiff's Certification of No Other Actions is false.
His false signed Certification intended to mislead the
Court to believe that [there] were no other actions
pending when he knew that it was not true and in fact
false and shall be dismissed as a matter of law.
Point 5
Pursuant to Rule 6:21-1 the Plaintiff failed to serve the
Defendant with his Summons and his Complaint shall
be dismissed as a matter of law.
Point 73
Pursuant to Rule 4:67-4(b) the Defendant is entitled to
a trial by jury on Plaintiff's summary proceeding action
because it was filed pursuant to Rule 4:67-1 and
therefore the Plaintiff's Complaint shall be dismissed as
a matter of law.
3
The table of contents of defendant's brief refers to an argument designated as
"Point 6" and entitled "Pursuant to Rule 4:67-1, the Plaintiff's Complaint shall
have been filed in the Law Division or the Chancery Division and not in the
Special Civil Part and shall be dismissed as a matter of law," but the bri ef
includes no argument under such a brief point or heading. An argument not
presented in a party's brief is deemed waived. Sklodowsky v. Lushis, 417 N.J.
Super. 648, 657 (App. Div. 2011).
A-3435-18T1
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A "trial court's interpretations of the law and the legal consequences that
flow from established facts are not entitled to any special deference," Manalapan
Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), and its
interpretation of court rules is also subject to de novo review, Myron Corp. v.
Atl. Mut. Ins. Corp., 407 N.J. Super. 302, 309 (App. Div. 2009), aff'd o.b., 203
N.J. 537 (2010). We therefore review de novo the trial court's orders, inasmuch
as they were based on the application of legal principles.
We first observe defendant does not argue the trial court erred by finding
he was without any legally enforceable right to remain on the property, and
plaintiff owned the property and was entitled to possession of it. Thus,
defendant does not directly dispute there was sufficient credible evidence
supporting the court's determination plaintiff was entitled to the ejectment of
plaintiff from the property under N.J.S.A. 2A:35-1. See generally Marder v.
Realty Constr. Co., 84 N.J. Super. 313, 320 (App. Div.) (observing "[t]here can
be no doubt that N.J.S.A. 2A:35-1, is intended to allow a remedy to one who
claims title to property in the possession of another. The statute replaces the
common law action of ejectment"), aff’d, 43 N.J. 508 (1964)); accord J&M Land
Co. v. First Union Nat'l Bank ex rel. Meyer, 166 N.J. 493, 520-21 (2001).
A-3435-18T1
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Defendant's arguments instead focus on purported procedural issues he
contends require reversal. His arguments, however, are based on
misinterpretations and misapplications of the applicable statutes and Rules of
Court, and his assertions of fact are contradicted by the record. For example,
defendant argues plaintiff's action for ejectment and possession of the property
under N.J.S.A. 2A:35-1 and N.J.S.A. 2A:39-6 is not cognizable in the Special
Civil Part, but he ignores Rule 6:1-2(a)(4) which expressly provides that
"[s]ummary actions for the possession of real property pursuant to N.J.S.A.
2A:35-1 et seq., where the defendant has no colorable claim of title or
possession, or pursuant to N.J.S.A. 2A:39-1 et seq.," are "cognizable in the
Special Civil Part." Moreover, Rule 4:3-1(a)(4)(F) similarly provides that where
an "ownership interest . . . pertaining to an ejectment is the only relief sought"
in an action, it may be filed in the Chancery Division, Law Division or Law
Division, Special Civil Part.
Defendant's claim he was not properly served with the verified complaint
and order to show cause is not only untethered to any competent evidence, 4 it is
belied by the record, which includes plaintiff's counsel's certification of service
4
Defendant's allegation is not, for example, supported by an affidavit or
certification that was submitted to the Law Division Special Civil Part. See R.
1:6-6.
A-3435-18T1
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of the verified complaint and order to show cause on defendant. Additionally,
defendant's appendix includes a February 21, 2019 letter he wrote to the court
expressly stating he received the verified complaint and the order to show cause.
Defendant also asserts he was not properly served with a summons as
required by Rule 4:4-1, and, as a result, the verified complaint should have been
dismissed pursuant to Rule 4:37-2(b) and Rule 6:2-1. Again, defendant's
argument is founded on a misinterpretation of, and failure to recognize or apply,
the applicable Rules.
Rules 4:4-1 and 4:4-2 respectively describe the requirements for the
issuance and form of summonses. Although the form of a summons in a Special
Civil Part proceeding must generally comply with the requirements of Rule 4:4-
2, in "summary ejectment and unlawful . . . detainer actions," Rule 6:2-1 permits
use of either a "summons or [a] signed order to show cause used as original
process." This is in accord with Rule 4:67-3, which provides that an order to
show cause issued in action in which the court is permitted by statute to proceed
in a summary manner, see R. 4:67-1(a), "no summons shall issue unless the court
otherwise orders," R. 4:67-3. Instead, "[t]he order to show cause, together with
a copy of the complaint and affidavits . . . shall be served . . . in the manner
prescribed by [Rule] 4:4-3 and [Rule] 4:4 for the service of the summons." Ibid.A-3435-18T1
11
Here, plaintiff's complaint sought relief pursuant to N.J.S.A. 2A:39-6,
which authorizes a court to determine actions for unlawful detainer of property
"in a summary manner." Plaintiff therefore properly brought his action in
accordance with Rule 4:67-1(a), which permits the filing of summary actions
where, as here, "the court is permitted by . . . statute to proceed in a summary
manner." Thus, plaintiff was not required to serve process by issuance of a
summons, R. 4:67-3, and correctly employed the order to show cause and
verified complaint to effectuate service of process on defendant, ibid. In his
letter to the court, defendant acknowledged receiving the order to show cause
and verified complaint, and he does not otherwise claim the order to show cause
did not comply with the requirements of Rule 6:2-1.5
There is also no merit to defendant's claim he was entitled to a jury trial.
As noted, plaintiff filed his complaint as a summary action in accordance with
Rule 4:67-1(a), which allows the court to proceed in a summary manner where
"permitted by rule or by statute." Plaintiff sought defendant's ejectment as result
5
Rule 6:2-1 provides the "summons or signed order to show cause used as
original process" in "summary ejectment and unlawful . . . detainer actions"
shall, "in lieu of directing the defendant to file an answer[,] . . . require the
defendant to appear and state a defense at a certain time and place . . . , and shall
notify the defendant that upon failure to do so, judgment by default may be
rendered for the relief demanded in the complaint."
A-3435-18T1
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of his unlawful detainer in accordance with N.J.S.A. 2A:39-6, which provides
for disposition of such actions "in a summary manner."
At the commencement of the February 25, 2019 proceeding on the return
of the order to show cause, defendant made a request for a jury trial that the
court denied. Defendant claims the court erred by denying his request, asserting
he was entitled to a jury trial under Rule 4:67-4(b) because there were "genuine
issues of fact" requiring adjudication before a jury. We reject defendant's
argument because Rule 4:67-4(b) is inapposite; it applies to proceedings in
which a motion is made in accordance with Rule 4:67-1(b) for disposition of a
matter in a summary manner. See Pressler & Verniero, Current N.J. Court
Rules, cmt. 2 on R. 4:67-4(b) (2020) (explaining "[a] defendant having the right
to a jury trial can defeat a motion for summary proceeding" made pursuant to
4:67-4(b) "by demanding a jury trial" in accordance with the Rule); see also
MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534,
550-51 (App. Div. 2005) (explaining the differences between proceedings
conducted under Rule 4:67-1(a) and -1(b)). Plaintiff did not, however, move for
a summary proceeding under Rule 4:67-1(b); the complaint and order to show
cause were filed in accordance with, and proceeded before the court pursuant to,
Rule 4:67-1(a), thereby rendering Rule 4:67-4(b) inapposite.
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Moreover, even assuming it applied here, Rule 4:67-4(b) requires a jury
trial where the court finds "the existence of a genuine issue of material fact."6
Contrary to his unsupported claims, the record shows defendant failed to present
any competent evidence demonstrating any genuine issues of material fact
requiring a plenary trial.
We recognize defendant's brief on appeal is replete with assertions there
were genuine issues of material fact precluding the court from proceeding on
plaintiff's claim in a summary manner. We do not consider the assertions
because most were never made before the trial court. See State v. Robinson,
200 N.J. 1, 20 (2009) (explaining we will generally decline to consider
arguments that were "not properly presented to the trial court" and do not "go to
the jurisdiction of the trial court or concern matters of great public interest"
(quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973))).
We also reject the assertions because defendant failed to present
competent evidence to the trial court properly raising the purported genuine
issues of material fact. See R. 1:6-6. The factual assertions made in defendant's
6
We need not address whether defendant had a "right" to a jury trial because
defendant offers no legal argument or authority establishing such a right, see
Sklodowsky, 417 N.J. Super. at 657, and defendant did not demand a jury trial
in accordance with the requirements of Rule 4:67-4(b).
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brief on appeal, all of which find no support in the evidentiary record, are simply
insufficient to raise any genuine issues of material fact concerning plaintiff's
ownership of the property or his right to possession of it. See Baldyga v.
Oldman, 261 N.J. Super. 259, 265 (App. Div. 1993) ("The comments following
[Rule 1:6-6] illustrate that its purpose is to . . . eliminate the presentation of facts
which are not of record by unsworn statement[s] . . . made in briefs and oral
arguments.").
For each of the forgoing reasons, we reject defendant's contention he was
entitled to a jury trial under Rule 4:67-4(b), and the court erred by denying his
request for same. The court properly disposed of plaintiff's claim in a summary
manner on the return date of the order to show cause in accordance with the
provisions of Rule 4:67 based on the undisputed competent evidence
establishing defendant's interest in the property was foreclosed; title to the
property was transferred to plaintiff by the sheriff's deed; and defendant refused
plaintiff's demand to vacate the property to which defendant had no ownership
or possessory interest.
Any of defendant's arguments we have not expressly addressed are
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without sufficient merit to warrant discussion in a written opinion. R. 2:11-
2(e)(1)(E).
Affirmed.
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