NEIL EPSTEIN VS. BARBARA EPSTEIN (L-2467-14, 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NOT FOR PUBLICATION WITHOUT THE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-1558-15T3
NEIL EPSTEIN,
Plaintiff-Appellant,
v.
BARBARA EPSTEIN, a/k/a
BARBARA PETKA,
Defendant-Respondent.
_____________________________________________
Submitted April 25, 2017 – Decided May 15, 2017
Before Judges Rothstadt and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L-2467-
14.
Christopher M. Manganello, attorney for
appellant.
Novins, York & Jacobus, attorneys for
respondent (Lauren Murray Dooley, on the
brief).
PER CURIAM
We granted plaintiff, Neil Epstein, leave to appeal from the
Law Division's September 30, 2015 order dismissing his complaint
against defendant, Barbara Epstein, also known as Barbara Petka.
Plaintiff's complaint alleged that, as a result of defendant's
fraud and misrepresentations, the late Harry D. Epstein removed
plaintiff as a named beneficiary under his living trust and last
will and testament, which named defendant as the trustee and
executrix. In response to a motion filed by defendant, the court
dismissed plaintiff's complaint without prejudice for failure to
state a claim pursuant to Rule 4:6-2(e).1 The court determined
that the complaint failed to identify the dates upon which the
alleged fraudulent conduct occurred, thereby preventing the court
from determining whether the claim was barred by the applicable
six-year statute of limitations, N.J.S.A. 2A:14-1, and failed to
provide the specificity required by Rule 4:5-8(a) when pleading
fraud.
Rather than seeking to file an amended complaint, see
Nostrame, supra, 213 N.J. at 127; see also Printing Mart-Morristown
v. Sharp Elecs. Corp., 116 N.J. 739, 772 (1989), plaintiff filed
1 We deem the order without prejudice because the court did not
specify a with-prejudice dismissal, and such orders are typically
without prejudice. See Nostrame v. Santiago, 213 N.J. 109, 128
(2013); see also Hoffman v. Hampshire Labs, Inc., 405 N.J. Super.
105, 116 (App. Div. 2009).
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a motion for leave to appeal. On appeal, he contends his complaint
was sufficient and any excluded references to dates was due to
their being unknown. We disagree and affirm.
We review a dismissal of a complaint under Rule 4:6-2(e) by
applying the same standard as the trial court. We determine
whether the pleadings even "suggest[]" a basis for the requested
relief. Printing Mart, supra, 116 N.J. at 746. As a reviewing
court, we assess only the legal sufficiency of the claim. Sickles
v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif.
denied, 185 N.J. 297 (2005). Consequently, "[a]t this preliminary
stage of the litigation [we are] not concerned with the ability
of plaintiffs to prove the allegation contained in the complaint."
Printing Mart, supra, 116 N.J. at 746. Rather, we accept the
factual allegations as true, Sickles, supra, 379 N.J. Super. at
106, and "search[] the complaint in depth and with liberality to
ascertain whether the fundament of a cause of action may be gleaned
even from an obscure statement of claim[.]" Printing Mart, supra,
116 N.J. at 746 (internal quotations and citation omitted).
"However, we have also cautioned that legal sufficiency requires
allegation of all the facts that the cause of action requires."
Cornett v. Johnson & Johnson, 414 N.J. Super. 365, 385 (App. Div.
2010), aff'd and modified, 211 N.J. 362 (2012). In the absence
of such allegations, the claim must be dismissed. Ibid.
3 A-1558-15T3
Applying those principles, we conclude from our review of the
limited record2 submitted to us and the applicable legal principles
that plaintiff's argument is without sufficient merit to warrant
discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm
substantially for the reasons stated by the motion judge in his
September 30, 2015 eight-page statement of reasons. We agree that
the specificity required in a complaint alleging fraud includes
some designation as to when the fraud occurred and the content of
any alleged misrepresentations. See R. 4:5-8(a); see also Rebish
v. Great Gorge, 224 N.J. Super. 619, 626 (App. Div. 1988)
"[P]leadings alleging fraud [need] to particularize the wrong with
dates and items to an extent practicable.")(emphasis added).
Plaintiff's complaint made no attempt to even approximate when the
2 We would be remiss if we did not point out that both parties
failed to meet their obligation to file a complete appendix,
including copies of the motion papers filed by them and considered
by the motion judge. See R. 2:6-1(a). Despite the lack of a
record, other than plaintiff's complaint and the motion judge's
order and decision, the plaintiff recites in his brief an extensive
procedural history, without providing us with copies of any motion
papers or resulting orders, and defendant lays out a factual
history without any support from the meager record. "Obviously,
the failure to supply pleadings that are essential to the proper
consideration of the issues hinders our appellate review." Johnson
v. Schragger, Lavine, Nagy & Krasny, 340 N.J. Super. 84, 87 n.3
(App. Div. 2001). We should dismiss the appeal for these
deficiencies, but we temper our urge to do so in the interest of
justice.
4 A-1558-15T3
conduct occurred during the decedent's life or the content of the
misrepresentations as alleged.
Accordingly, we affirm the September 30, 2015 order, without
prejudice to plaintiff's right to seek leave from the trial court
to file an amended complaint.
Affirmed.
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