NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3320-22
BAHMAN KHASHAYAR,
Plaintiff-Appellant,
v.
LBI REALTY, LBI REALTY TWO, PARKVIEW VILLAGE, VILLA NOVA, LAWRENCE LEFF (Partner), DAVID BELLICHA, and COLEMAN LEFF (Partner),
Defendants-Respondents,
and
ELISE CREIGHTON, ANGEL L. RODRIGUEZ, and RODRIGUEZ JR.,
Defendants.
Submitted December 12, 2024 – Decided February 5, 2025
Before Judges Natali and Vinci.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1071-22. Bahman Khashayar, appellant pro se.
Hoagland, Longo, Moran, Dunst & Doukas, LLP, and Goetz, Schenker, Blee & Wiederhorn, LLP, attorneys for respondents 2-18 Realty (improperly pled as LBI Realty and LBI Realty Two), Lawrence Leff, David Bellicha, and Coleman Leff (Richard J. Mirra and Andrew M. Lusskin, of counsel and on the brief).
PER CURIAM
Plaintiff Bahman Khashayar challenges a May 18, 2023 Law Division
order which granted summary judgment to defendants 2-18 Realty (improperly
pled as LBI Realty and LBI Realty Two), Lawrence Leff, David Bellicha, and
Coleman Leff (collectively, defendants), and dismissed plaintiff's thirteen-count
complaint alleging breach of contract and various negligence and intentional-
based tort claims arising from the parties' former landlord-tenant relationship.
Having considered the record against the applicable legal principles, we affirm
in part, reverse and vacate in part, and remand for further proceedings.
I.
We begin by reviewing the facts in the motion record, viewing them in a
light most favorable to plaintiff, the non-moving party. Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995). This action arose from a landlord -
tenant relationship between plaintiff and defendants which originated in a
November 9, 2004 lease for residential property located in Roselle. Defendants
2 A-3320-22 LBI Realty, LBI Realty Two, and Parkview Village are trade names used by 218 Realty, the entity which owns the leased property, defendant Lawrence Leff is the owner of 2-18 Realty, and David Bellicha is the property manager.1
On November 9, 2004, plaintiff and Parkview Village entered a one-year
lease agreement in which plaintiff agreed to pay $750 per month by the first of
each month, with a $30 late charge for any payment more than ten days late.
The lease also provided plaintiff could continue to rent the unit "on a month-to-
month basis (with the rest of the [l]ease remaining the same)" if defendants
changed the lease term at its expiration. As no further leases were provided in
the record, it appears the parties operated on a month-to-month basis following
the end of the first year's lease. At some point, plaintiff's rent increased, and as
of December 1, 2020, plaintiff was paying $950 per month.
On December 9, 2020, defendants LBI Realty and Parkview Village filed
an eviction complaint in the Union County Special Civil Part (the landlord -
tenant action), alleging plaintiff failed to pay rent from October through
1 The record is unclear as to Villa Nova's role in the tenancy action or plaintiff's Law Division complaint. Further, although there is some dispute as to defendant Coleman Leff's ownership interest in LBI Realty, LBI Realty Two, and Parkview Village, that dispute is irrelevant to our disposition of the issues presented in this appeal. Finally, defendants Elise Creighton, Angel L. Rodriguez, and "Rodriguez Jr.," defaulted below and have not participated in the proceedings before us.
3 A-3320-22 December 2020, and owed $7,387.54, including $4,167.16 in arrears from
previous months. In support, they submitted the certifications of Laurence Leff, 2
who stated plaintiff "failed to pay rent now due and owing in this matter," and of
defendant Bellicha, who separated the amounts claimed between rent, legal fees,
and costs.
Following extensive litigation and negotiations, the parties resolved the
case on January 20, 2022, under the following terms: plaintiff consented to a
judgment for possession in defendants' favor, agreed to pay $6,950 on a specific
schedule, representing rent from February 1, 2022, to August 31, 2022, and
agreed to move out of the premises by August 31, 2022, while defendants
agreed to waive their claims for back rent. Notably, the parties' agreement also
specifically permitted, in the event of plaintiff's failure to make all of the
aforementioned payments, defendants to "file a certification stating when and
what the breach was and that the warrant of removal can then be executed upon,
as permitted by law, prior to the agreed upon move out date." The court entered
a judgment for possession by consent the same day.
2Laurence Leff, not to be confused with defendant Lawrence Leff, was defendants' attorney in the landlord-tenant action.
4 A-3320-22 On February 7, 2022, defendants sought a warrant of removal. In support,
they submitted a second certification of Lawrence Leff which stated plaintiff failed
to make the first payment due February 1, 2022. Plaintiff objected and moved to
dismiss, contending defendants refused to accept his payment pursuant to the
agreement.
Defendants moved to reinstate the action, arguing it was improperly
dismissed on February 25, 2022, and although no order is contained in the record,
we assume the application was granted as the matter proceeded and the parties
entered another agreement on March 7, 2022, in which, among other terms,
plaintiff again agreed to vacate the property by August 31, 2022, and pay
defendants $6,950. The court approved the parties' agreement, which also included
a provision that the court release any funds paid to it.
Defendants sought a warrant of removal on September 1, 2022. In support of
their request, defendants submitted additional certifications of Lawrence Leff and
Bellicha stating plaintiff did not move out of the property by August 31, 2022. The
court issued the warrant of removal on September 14, 2022.
5 A-3320-22 While the landlord-tenant action was pending, and apparently in lieu of asserting Marini defenses,3 plaintiff filed a nine-count complaint in the Law Division on March 29, 2022, in which he alleged defendants:
(1) breached the lease by not providing "the reasonable care, maintenance, repair, safety, security, and service" contemplated therein;
(2) breached the fiduciary duty owed him under the lease by "ignoring the necessary corrective and preventative maintenance, repairs, cleanups, by filing [a] willfully false complaint against the [p]laintiff, and by ignoring to take [sic] all necessary actions to provide a reasonably safe, secure, and habitable environment for the [p]laintiff";
(3) breached the implied covenant of good faith and fair dealing "by failing to take actions that they should have and/or by taking actions that harmed, disturbed, discomforted, harassed, endangered, and imposed unhealthy and/or hazardous conditions and environment on the [p]laintiff" and "by filing a willful false and baseless complaint against the [p]laintiff";
(4) knowingly misrepresented "the existing issues, imminent malfunctions, health hazard problems, and portending deficiencies within their building that would affect the service and/or pose a health risk to the [p]laintiff";
3Tenants can assert an entitlement to a partial or total rent abatement for the period in which habitability issues remain unresolved after the landlord is given notice and an opportunity to cure the defects. See Marini v. Ireland, 56 N.J. 130, 146 (1970).
6 A-3320-22 (5) negligently failed to maintain the property or to protect plaintiff's property from "wrongful actions by others";
(6) negligently managed the property;
(7) engaged in "legal harassment" by making "knowing and willful false certification[s]" to the court in the landlord-tenant action;
(8) improperly damaged plaintiff's credit by filing a "willfully false" complaint in the landlord-tenant action; and
(9) inflicted emotional distress upon plaintiff.
Plaintiff's two negligence claims (counts five and six) contained several
components. In count five, plaintiff alleges defendants failed to (1) take
appropriate action to protect tenants' property from third parties' theft and/or
vandalism, (2) ensure leased units had proper water and heat, and (3) maintain
plumbing and waste disposal, all of which plaintiff claims he "repeatedly
informed [defendants of] orally, in writing, and in person . . . ." In count six,
plaintiff also avers despite repeated requests, defendants failed to (1) install
security cameras in response to "repeated incidents" of vandalism and property
theft; (2) prevent third parties from committing crimes on the property such as
harassment, theft, vandalism, and harming tenants' pets; and (3) properly
maintain the parking lot.
7 A-3320-22 Plaintiff sought damages for his "actual loss . . . actual expenses . . .
[c]ompensation of credit and related expenses . . . emotional distress," as well as
"[c]osts and expenses of litigation" and "[s]tatutory, treble[,] and/or [p]unitive
damages." He later amended the complaint twice on May 9, 2022 and June 8,
2022. The May 9 amendment added count (ten), which alleged defendants
"applied wood polish, paint, and other toxic substances" in the apartment directly
below plaintiff's and "deliberately and persistently refused to aerate" plaintiff's
unit, to "intentionally expose the [p]laintiff and his family to the toxic fumes,
and to intentionally impose health risk on the [p]laintiff and his family."
The June 8 amendment joined as defendants plaintiff's neighbors, Elise
Creighton, Angel L. Rodriguez, and Rodriguez Jr.,4 who occupied the apartment
below him, and added additional counts against them and defendants. Specifically,
plaintiff alleged defendants:
(11) "allowed and/or arranged for" Creighton, Rodriguez, and Rodriguez Jr., who defendants knew to "smoke heavily their drugs and cigarettes inside their residence," to occupy the apartment below plaintiff's to "knowingly harass, disturb, intoxicate, poison, and to torture the [p]laintiff and his family"; and
(12) knowingly and intentionally breached their "moral obligations and ethical duties" to protect plaintiff and
4We refer to defendant Rodriguez Jr. only by his surname, as that is how it is pled, and because his full name does not appear in the record.
8 A-3320-22 his family from Creighton, Rodriguez, and Rodriguez Jr.'s "sickening drugs and smoking."
Count thirteen involved claims against only Creighton, Rodriguez, and
Rodriguez Jr., who, as noted, defaulted. Plaintiff again sought to amend his
complaint to add claims for "illegal and unauthorized entry into the [p]laintiff's
premises; . . . theft and disposition and destruction of the [p]laintiff's properties; and
. . . holding and refusing to return the [p]laintiff's money (security deposit plus all
accrued interest for and during the past [e]ighteen . . . years)." The court denied
plaintiff's third request to amend in a February 9, 2023 order because it found to
permit such an amendment would be futile as "the claims d[id] not have merit and
would be dismissed under R[ule] 4:6-2." Plaintiff has not challenged this order
before us.
On March 17, 2023, defendants moved for summary judgment primarily
arguing plaintiff's claims were precluded by the preclusive doctrines of res
judicata and collateral estoppel. They maintained these claims were previously
litigated and resolved, or could have been addressed, in the landlord-tenant
action.
In support of their summary judgment motion, defendants submitted a
statement of facts, consisting of ten paragraphs, all of which describe nothing more
than the procedural history of the landlord-tenant action and the instant
9 A-3320-22 matter. Defendants also submitted, among other things, copies of (1) the lease
agreement, (2) the judgment for possession and warrant of removal, and (3) the
aforementioned second certification of defendant Lawrence Leff filed in the
landlord-tenant action.
Plaintiff opposed the application and maintained the landlord-tenant
action did not resolve the issues raised, and regardless, material factual issues
precluded summary judgment. In support, he submitted a detailed certification
along with copies of several checks purporting to show he had paid rent for
October through December 2020. He also submitted numerous photos
apparently showing trees being cut and damage to the property, and police
reports regarding his interactions with Creighton, Rodriguez, and Rodriguez Jr.
Plaintiff also moved to extend discovery by 180 days on April 11, 2023, noting
the parties had not exchanged any discovery.
After considering the parties' written submissions and oral arguments, the
court entered an order on May 18, 2023 that granted defendants' applications
and dismissed plaintiff's complaint with prejudice and also issued a written
opinion explaining the bases for the court's dismissal order. Without addressing
defendants' arguments regarding the preclusive doctrines of res judicata and
collateral estoppel, the court first found plaintiff failed to submit competent
10 A-3320-22 evidence creating a genuine issues of material fact as required by Rule 4:46-2 and
Brill.
With respect to count one in which plaintiff alleged breach of contract, the
court further found it was "[p]laintiff, not [d]efendants, [that] breached the lease"
as demonstrated by defendants' submitted account ledger "show[ing] that
[p]laintiff failed to pay rent on multiple occasions going back several years or did
not pay the full amount." It also relied on the fact the court granted a warrant of
removal in the landlord-tenant action.
The court also concluded plaintiff's second count, in which he generally
alleged defendants breached their fiduciary duties, was unsupported by the law
or facts after finding "the relationship between the parties . . . does not give rise
to a fiduciary relationship." Similarly, the court rejected plaintiff's claims that
the motion record established a genuine and material question of fact regarding
defendants' alleged breach of the implied covenant of good faith and fair dealing
because any assertion defendants filed a "false and baseless complaint in the
landlord[-]tenant action" was factually unsupported. The court further found
defendants' landlord-tenant action was "was not baseless or false as a warrant for
removal was issued by the [c]ourt after [d]efendants submitted the required
certifications."
11 A-3320-22 As to counts four through ten, the court concluded plaintiff simply failed
to present "competent evidence to sustain those claims." Specifically, relying
upon Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 425-26 (App. Div.
2009), it noted a "party does not create a genuine issue of fact simply by offering
a sworn statement," and explained "conclusory and self-serving assertions in
certifications without explanatory or supporting facts will not defeat a
meritorious motion for summary judgment."
The court further explained plaintiff merely "submitted pictures in
opposition without context regarding how they relate to the [c]omplaint" and
failed to include any citation to the record contrary to Rule 4:46-2(b). It also
explained the police reports plaintiff submitted were "irrelevant" as to the
moving defendants as they involved plaintiff's disputes with Creighton,
Rodriguez, and Rodriguez Jr. The court did not make any findings of fact or
conclusions of law as to counts eleven and twelve. On June 23, 2023, the court
also denied as moot plaintiff's pending discovery application in light of its
summary judgment order. This appeal followed.
II.
Before us, plaintiff argues the court erred by granting defendants'
summary judgment application, which he asserts was "solely based on the
12 A-3320-22 [d]efendants' invalid statement of a previous adjudication of the matters (of this
[b]reach of [c]ontract lawsuit) by another court," specifically in the landlord-
tenant action. He contends defendants "have stated as 'fact' that the [Special
Civil Part in the landlord-tenant action] . . . adjudicated all the cause[s] of
action[] of this breach of contract lawsuit," a position which he maintains "has
no factual basis and is contradictory to the court system by division and
competency, and is therefore invalid." Plaintiff argues the court incorrectly
applied res judicata and/or collateral estoppel when granting defendants'
application.
Plaintiff further maintains his specific denials of defendants' statement of
material facts demonstrate the existence of contested factual issues. He argues
his claims were "well supported by the evidential material presented . . . or at
the very minimum . . . sufficiently suggest[ed his] cause[s] of action." Plaintiff
additionally contends the court's summary judgment order was "against the
interest of justice" because discovery was incomplete.
We have reviewed the record under our de novo standard of review, and
conclude the court properly granted summary judgment with respect to counts one
through three, and we affirm substantially for the reasons expressed in its May 18,
2023 written decision. We also conclude the court properly granted
13 A-3320-22 summary judgment with respect to count seven. We reverse and remand,
however, with respect to counts four through six and eight through twelve as
defendants failed to properly support their application for summary judgment,
contrary to Rule 4:46-2(a). Finally, we vacate the court's June 23, 2023 order
denying plaintiff's discovery application as moot as the court's decision was
dependent upon its summary judgment decision which we have reversed in part.
III.
We review the disposition of a summary judgment motion de novo,
applying the same standard used by the motion judge. Townsend v. Pierre, 221
N.J. 36, 59 (2015). Like the motion judge, we view "the competent evidential
materials presented . . . in the light most favorable to the non-moving party, [and
determine whether they] are sufficient to permit a rational factfinder to resolve
the alleged disputed issue in favor of the non-moving party." Town of Kearny v.
Brandt, 214 N.J. 76, 91 (2013) (quoting Brill, 142 N.J. at 540). "Summary
judgment is appropriate if 'there is no genuine issue as to any material fact' and
the moving party is entitled to judgment 'as a matter of law.'" C.V. v. Waterford
Twp. Bd. of Educ., 255 N.J. 289, 305 (2023) (quoting R. 4:46-2(c)).
"'[C]onclusory and self-serving assertions' in certifications without explanatory or
supporting facts will not defeat a meritorious motion for summary judgment."
14 A-3320-22 Hoffman, 404 N.J. Super. at 425-26 (quoting Puder v. Buechel, 183 N.J. 428, 440 (2005)).
In reviewing a summary judgment record, we limit our findings of fact to
those facts properly presented in accordance with Rule 4:46-2. The Rule
provides:
[A] party moving for summary judgment is required to submit a "statement of material facts," which must "set forth in separately numbered paragraphs a concise statement of each material fact as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted."
[Claypotch v. Heller, Inc., 360 N.J. Super. 472, 488 (App. Div. 2003) (quoting R. 4:46-2(a)).]
A moving party's citation to the motion record "shall identify the document
and shall specify the pages and paragraphs or lines thereof or the specific
portions of exhibits relied on" in support of each statement of material facts. R.
4:462(a).
"[A]ll material facts in the movant's statement which are sufficiently
supported will be deemed admitted for purposes of the motion only, unless
specifically disputed by citation conforming to the requirements of paragraph (a)
demonstrating the existence of a genuine issue as to the fact." R. 4:46-2(b). "[A]
party opposing a motion for summary judgment [must] 'file a responding
15 A-3320-22 statement either admitting or disputing each of the facts in the movant's statement.'"
Claypotch, 360 N.J. Super. at 488 (quoting R. 4:46-2(b)).
Rule 4:46-2's requirements are "critical" but "entail[] a relatively
undemanding burden." Housel v. Theodoridis, 314 N.J. Super. 597, 604 (App.
Div. 1998). They are "designed to 'focus [a court's] . . . attention on the areas of
actual dispute' and 'facilitate the court's review' of the motion." Claypotch, 360
N.J. Super. at 488 (quoting Pressler & Verniero, Current N.J. Court Rules, cmt.
1.1 on R. 4:46-2 (2003)). A court must decide a motion for summary judgment
based only on the "factual assertions . . . that were . . . properly included in the
motion [for] and [in opposition to] . . . summary judgment" pursuant to Rule
4:46-2. Kenney v. Meadowview Nursing & Convalescent Ctr., 308 N.J. Super.
565, 573 (App. Div. 1998); see also Lombardi v. Masso, 207 N.J. 517, 549
(2011) (Rivera-Soto, J., dissenting) (stating a trial court must decide a summary
judgment motion "[b]ased on the Rule-defined, specifically tailored summary
judgment record before it").
Applying these principles, and our de novo review of the record, we
conclude defendants failed to properly support their summary judgment motion
with respect to counts four through six and eight through twelve. Unlike counts
one through three and seven, defendants failed to satisfy their initial burden
16 A-3320-22 under Rule 4:46-2(a), which demands they "set forth in separately numbered
paragraphs a concise statement of each material fact as to which the movant
contends there is no genuine issue together with a citation to the portion of the
motion record establishing the fact or demonstrating that it is uncontroverted." As
noted, the only evidence defendants offered in support of their application was the
certification of counsel and certain documents related to the landlord-tenant action.
Defendants did not submit any competent affidavit or certification from an
individual with knowledge of relevant facts as to the remaining counts, nor did
they provide any citations to any competent evidential materials related to counts
four through six and eight through twelve. See, e.g., Gonzalez v. Ideal Tile
Importing Co., Inc., 371 N.J. Super. 349, 358 (App. Div. 2004), aff'd, 184 N.J. 415
(2005) ("Even an attorney's sworn statement will have no bearing on a summary
judgment motion when the attorney has no personal knowledge of the facts
asserted."); Cafferata v. Peyser, 251 N.J. Super. 256, 263 (App. Div. 1991)
(attorney's certification containing facts beyond his personal knowledge was "gross
hearsay and a clear violation of R. 1:6-6"); Pressler & Verniero, cmt. on R. 1:6-6
("Affidavits by attorneys of facts not based on their personal knowledge but related
to them by and within the primary knowledge of their clients constitute
objectionable hearsay.").
17 A-3320-22 Rather, defendants relied solely upon legal arguments such as plaintiff's
claims being barred by the preclusive doctrines of res judicata and collateral
estoppel, or that plaintiff failed to plead properly a cause of action in his
complaint. We need not address whether plaintiff's claims were barred by the
preclusive doctrines of res judicata and collateral estoppel based on the court's
adjudication in the landlord-tenant action because the issue was not addressed
or decided by the court in the first instance. See, e.g., Est. of Doerfler v. Fed.
Ins. Co., 454 N.J. Super. 298, 301-02 (App. Div. 2018) (explaining that
although an appellate court conducts a de novo review of a summary judgment
order, its "function . . . is to review the decision of the trial court, not to decide
the motion tabula rasa"). We simply note, however, plaintiff's Law Division
action was pending at the time the landlord-tenant action was decided.
Further, the court erred in granting defendants' motion for summary
judgment with respect to counts four through six and eight through twelve
because it concluded plaintiff did not properly support his opposition to
summary judgment in accordance with Rule 4:46-2(b). This decision was in
error because, as noted, defendants never met their initial burden under Rule
4:46-2(a). Additionally, the court did not address the fact there was over two
months of discovery remaining as of the date defendants filed their summary
18 A-3320-22 judgment application, and defendants had failed to respond to any of plaintiff's
propounded discovery demands.
With respect to count seven, it appears plaintiff alleged the tort of
malicious use of process. The civil counterpart to malicious prosecution,
malicious use of process requires the plaintiff to prove: (1) a civil action was
instituted by the defendant against the plaintiff; (2) "the action was motivated
by malice"; (3) there was no probable cause to bring the action; (4) "the action
was terminated favorably to the plaintiff"; and (5) "the plaintiff has suffered a
special grievance caused by the institution of the underlying civil claim."
LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009).
Although it is undisputed defendants initiated the landlord -tenant
action, plaintiff failed to establish the existence of any genuine and material
factual question as to whether that action was terminated favorably to him.
Plaintiff and defendants entered several settlement agreements in which both
parties made certain concessions, but ultimately the court granted defendants
a judgment of possession and issued a warrant of removal. Accordingly, any
argument that the termination of the landlord-tenant action was on terms
favorable to plaintiff lacks merit. Similarly, nothing in the motion record
demonstrates that defendants' actions were motivated by malice or any of the
19 A-3320-22 remaining elements of this cause of action. Further, we note in addition to the
materials submitted in support of defendants' summary judgment application, the
court was well aware of the landlord-tenant action and was free to consider filings
in that matter as they were a matter of public record. See R. 1:38-1; cf. Banco
Popular N. Am v. Gandi, 184 N.J. 161, 183 (2005) (quoting Lum v. Bank of Am.,
361 F.3d 217, 222 n.3 (3d Cir. 2004)) (explaining in determining a motion to
dismiss, courts may consider "matters of public record").
In light of our decision, on remand, the court should address, in the first
instance, plaintiff's application to extend discovery. Nothing in our opinion shall
prevent defendants from renewing their summary judgment motion, nor plaintiff
from filing any necessary applications.
We also note, with respect to counts eleven and twelve, the court did not
make factual findings or conclusions of law. See R. 1:7-4(a) (requiring court
"find the facts and state its conclusions of law thereon in all actions tried
without a jury, on every motion decided by a written order that is appealable as
of right . . ."). To the extent on remand any party moves for summary judgment,
any such application should comply with Rule 4:46-2, and the court shall make
appropriate findings of fact and conclusions of law on all issues.
20 A-3320-22 Affirmed in part, reversed and vacated in part, and remanded for further
proceedings. We do not retain jurisdiction.
21 A-3320-22