CARMEN DURAN VS. HEIGHTS LIQUORS (L-0338-18, 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NOT FOR PUBLICATION WITHOUT THE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-0666-19T3
CARMEN DURAN,
Plaintiff-Respondent,
v.
HEIGHTS LIQUORS,
Defendant,
and
SUKESHI HIRPARA, JAYANT
HIRPARA, and HIMANSHU
ANTALA, and CITY OF JERSEY
CITY,
Defendants-Respondents,
and
SHREEDURGA, LLC,
Defendant-Appellant,
____________________________
Argued November 9, 2020 – Decided November 24, 2020
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-0338-18.
Shaun A. McGinn argued the cause for appellant
(Hartford Insurance, attorneys; Shaun A. McGinn, on
the briefs).
Robert M. Brigantic argued the cause for respondents
Sukeshi Hirpara, Jayant Hirpara, and Himanshu Antala
(Law Offices of Michael Swimmer, attorneys; Robert
M. Brigantic, on the brief).
PER CURIAM
Defendant Shreedurga, LLC (Shreedurga) appeals from two orders: an
August 16, 2019 order granting summary judgment in favor of defendants
Sukeshi Hirpara, Jayant Hirpara, and Himanshu Antala (lessor defendants) and
compelling Shreedurga to indemnify them and pay their defenses costs; and a
September 27, 2019 order denying reconsideration. The judge improperly
denied Shreedurga's requests for oral argument on both motions and in granting
summary judgment rendered no findings of fact or conclusions of law. We
therefore reverse, remand, and permit the parties to engage in motion practice
anew.
Plaintiff filed a personal injury complaint seeking compensation for
injuries resulting from a trip and fall on the sidewalk abutting a liquor store
operated by Shreedurga. Lessor defendants asserted cross-claims against
A-0666-19T3
2
Shreedurga seeking defense and indemnification, arguing that Shreedurga failed
to purchase additional insured coverage as purportedly required by the parties'
lease agreement. Shreedurga moved for summary judgment and lessor
defendants cross-moved for summary judgment on their cross-claim for defense
and indemnification. Shreedurga opposed the cross-motion and requested oral
argument. The judge mistakenly marked the motion as unopposed and granted
lessor defendants' cross-motion for summary judgment on the papers. The judge
rendered no findings of fact or conclusions of law.
Shreedurga moved for reconsideration, and again requested oral
argument, which the judge did not conduct. In his written opinion denying
reconsideration, the judge acknowledged he mistakenly marked the cross-
motion as unopposed, rejected Shreedurga's contention that he did not consider
its opposition, and concluded that Shreedurga did not meet the standard for relief
on a motion for reconsideration. The judge did not articulate any reason for
denying Shreedurga's second request for oral argument.
On appeal, Shreedurga raises the following points for this court's
consideration:
POINT I
THE [JUDGE] BELOW IMPROPERLY HELD THAT
TENANT SHREEDURGA BREACHED THE LEASE
A-0666-19T3
3
CONTRACT BY FAILING TO PRODUCE
INSURANCE INFORMATION WHERE NO
BREACH OF CONTRACT CLAIM WAS ASSERTED
AND IN THE ABSENCE OF ANY SUPPORTING
EVIDENCE DEMONSTRATING A TIMELY
REQUEST FOR INSURANCE INFORMATION[.]
POINT II
THE TERMS OF THE LEASE PERTAINING TO
INSURANCE COVERAGE ARE AMBIGUO[US]
AND MUST BE CON[STRUED] AGAINST THE
PARTY SEEKING INDEMNIFICATION[.]
POINT III
LESSOR [DEFENDANTS] [ARE] INELIGIBLE FOR
AN ADDITIONAL INSURED COVERAGE EVEN IF
THE LEASE IS DEEMED TO INCLUDE SUCH A
REQUIREMENT BECAUSE THE ACCIDENT DOES
NOT ARISE OUT OF THE USE OF THE LEASED
PREMISES[.]
POINT IV
THE [JUDGE] BELOW IMPROPERLY DENIED
SHREEDURGA'S REQUEST FOR ORAL
ARGUMENT ON ITS OPPO[SITION] TO THE
CROSS[-]MOTION AND MOTION FOR
RECONSIDERATION[.]
Since we are reversing and remanding for the parties to engage in motion
practice anew, we need not reach the substantive arguments.
A-0666-19T3
4
I.
The judge was required to conduct oral argument on the dispositive
motions or explain his reasons for not doing so. He did neither. And the judge
should have made findings of fact and conclusions of law on the merits of the
summary judgment motions.
Rule 1:6-2(d) governs oral argument on motions in civil cases and
provides in relevant part:
[N]o motion shall be listed for oral argument unless a
party requests oral argument in the moving papers or in
timely-filed answering or reply papers, or unless the
court directs. A party requesting oral argument may,
however, condition the request on the motion being
contested. If the motion involves pretrial discovery or
is directly addressed to the calendar, the request shall
be considered only if accompanied by a statement of
reasons and shall be deemed denied unless the court
otherwise advises counsel prior to the return day. As to
all other motions, the request shall be granted as of
right.
"The denial of oral argument when a motion has properly presented [like here]
a substantive issue to the court for decision 'deprives litigants of an opportunity
to present their case fully to a court.'" Palombi v. Palombi, 414 N.J. Super. 274,
285 (App. Div. 2010) (quoting Mackowski v. Mackowski, 317 N.J. Super. 8, 14
(App. Div. 1998)).
A-0666-19T3
5
A request for oral argument respecting a substantive motion may be
denied. Raspantini v. Arocho, 364 N.J. Super. 528, 531-34 (App. Div. 2003).
However, in accordance with Rule 1:6-2(d), "[w]here . . . the trial [judge]
decides the motion on the papers despite a request for oral argument, the trial
[judge] should set forth in its opinion its reasons for disposing of the motion for
summary judgment on the papers in its opinion." LVNV Funding, L.L.C. v.
Colvell, 421 N.J. Super. 1, 5 (App. Div. 2011); see Great Atl. & Pac. Tea Co.,
Inc. v. Checchio, 335 N.J. Super. 495, 497-98 (App. Div. 2000) (reversing
summary judgment where the trial court did not conduct oral argument, which
was requested by the moving party, because the court did not find any basis for
relaxing the rule and the judge provided no basis for denial in the record). Where
a request for oral argument on a substantive motion is properly made, denial of
argument—absent articulation of specific reasons on the record— constitutes
reversible error. Raspantini, 364 N.J. Super. at 531-34.
A judge is required to make findings of fact and reach conclusions of law.
Rule 1:7-4(a) provides that "[t]he court shall, by an opinion or memorandum
decision, either written or oral, find the facts and state its conclusions of law
thereon . . . on every motion decided by a written order that is appealable as of
right[.]" The inclusion is particularly important "in the case of motions for
A-0666-19T3
6
summary judgment, as to which [Rule] 4:46-2(c) specifically directs the court
to make findings and conclusions in accordance with [Rule] 1:7-4(a)."
Raspantini, 364 N.J. Super. at 533. The failure to include a statement of reasons
for granting the original motion—especially in the absence of oral argument—
impedes our ability to consider the parties' arguments, even when we apply a de
novo standard of review. See Estate of Doerfler v. Fed Ins. Co., 454 N.J. Super.
298, 302 (App. Div. 2018) (noting that "although our standard of review from
the grant of a motion for summary judgment is de novo . . . our function as an
appellate court is to review the decision of the trial court, not to decide the
motion tabula rasa"). As a result of these deficiencies, we have no basis on
which to conduct any meaningful review either of the judge's denial of oral
argument or his decision to grant summary judgment.
As to reconsideration, we similarly conclude that the judge improperly
denied Shreedurga's request for oral argument. In his written opinion, the judge
did not mention Shreedurga's request for oral argument nor did he articulate why
he was denying it, as required by Rule 1:6-2(d). The judge merely cited the
standard for reconsideration relief which under certain circumstances—but not
these circumstances—could have otherwise formed the basis of a denial of oral
argument. See Raspantini, 364 N.J. Super. at 532 (explaining that a "motion for
A-0666-19T3
7
reconsideration might quite properly have been decided without oral argument,
if, for example, that motion on its face did not meet the applicable test for that
relief . . . and if that substantive shortcoming were given as the reason for
denying oral argument"). Without a full explanation to inform this court as to
why the request was denied, we are again unable to independently evaluate the
sufficiency of the judge's reasons for refusing Shreedurga's request for oral
argument, whatever those reasons may have been.
Reversed and remanded. Because the parties may engage in motion
practice anew, and because any later appeal will be from a different record, we
do not retain jurisdiction.
A-0666-19T3
8