NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1718-24
B&M ESTATES LLC, BRENDAN CONHEENEY, and MICHAEL CHERVENAK,
Plaintiffs-Appellants,
v.
W. LANE MILLER, INDIVIDUALLY and THE KISLAK COMPANY, INC.,
Defendants-Respondents. ____________________________
Submitted January 13, 2026 – Decided January 23, 2026
Before Judges Perez Friscia and Vinci.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3730-24.
Genesis A. Peduto, attorneys for appellants (Suzy R. Yengo, on the briefs).
W. Lane Miller, attorney for respondents.
PER CURIAM Plaintiffs B&M Estates LLC (B&M), Brendan Conheeney, and Michael
Chervenak appeal from a January 3, 2025 order dismissing their complaint
against defendants The Kislak Company, Inc. (Kislak) and W. Lane Miller, Esq.
without prejudice for failure to state a claim pursuant to Rule 4:6-2(e).1 We
affirm.
The dispute in this case arose out of a lawsuit filed by Kislak against
plaintiffs in Middlesex County, Kislak Co. Inc. v. Prominent Props., LLC, No.
MID-L-3038-14, to recover an unpaid real estate commission on property
located in Lake Como that plaintiffs purchased in 2013. In 2016, following a
bench trial, the court entered judgment in favor of plaintiffs, finding no cause of
action against them. Kislak appealed from that judgment, arguing the court
improperly dismissed its claims against plaintiffs.
We reversed and remanded "to the trial court for specific factual findings
and conclusions of law as to the finding of no cause of action against" plaintiffs.
Kislak Co. Inc. v. Prominent Props., LLC, No. A-2650-17 (App. Div. Apr. 3,
1 Based on the circumstances of this case, we have reviewed the order as final and appealable as of right because it resolved all issues as to all parties. See Rubin v. Tress, 464 N.J. Super. 49, 56 n.3 (App. Div. 2020) (explaining an order that "disposes of all issues as to all parties" may be appealable as of right, "depending on the circumstances") (quotations and citations omitted); see also Morris County v. 8 Court Street Ltd., 223 N.J. Super. 35, 39 (App. Div. 1988).
A-1718-24 2 2019) (slip op. at 8). On June 12, 2020, the court entered an amended judgment
in favor of Kislak and against plaintiffs finding them jointly and severally
responsible for the unpaid real estate commission (the Middlesex judgment).
Plaintiffs appealed from the Middlesex judgment. On October 30, 2020,
their appeal was dismissed for failure to prosecute. Kislak Co. Inc. v. Prominent
Props., LLC, No. A-0193-20 (App. Div. Oct. 30, 2020) (order at ¶¶ 1-2).
In 2022, Kislak served information subpoenas on plaintiffs in connection
with the Middlesex judgment. Plaintiffs did not respond. On March 23, 2022,
Kislak filed a motion to enforce litigants' rights seeking to compel plaintiffs to
respond.
On April 28, 2022, plaintiffs removed the Middlesex action to the United
States District Court for the District of New Jersey pursuant to 28 U.S.C. § 1446
(a) and (d), contending removal was "proper because [of Kislak's] attempts to
collect a debt and [plaintiffs'] [c]ounterclaim[s] involve federal questions." On
May 19, 2022, plaintiffs filed a document titled "counterclaims [and] third-party
complaint with declaratory judgment" in the District Court purporting to assert
"affirmative defenses" to the Middlesex judgment and claims against Kislak and
its attorney in the Middlesex action, Miller, for violations of the Fair Debt
A-1718-24 3 Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 to -1692p, and Fair Credit
Reporting Act (FCRA), 15 U.S.C. §§ 1681 to -1681x, among others.
On August 15, 2023, the District Court entered an order granting Kislak's
motion to remand the case to Middlesex County and awarding it attorney's fees
because plaintiffs "did not have an objectively reasonable basis for removal."
Kislak Co. Inc. v. Prominent Props., LLC, No. CV 22-2482, 2023 WL 5218085,
at *1 (D.N.J. Aug. 15, 2023). On September 8, the District Court entered an
order awarding Kislak $14,450 in attorney's fees.
Plaintiffs appealed to the United States Court of Appeals for the Third
Circuit. On July 3, 2024, the Third Circuit dismissed their appeal for lack of
jurisdiction, affirmed the District Court's award of attorney's fees, and deemed
plaintiffs' appeal "plainly frivolous." Kislak Co. Inc. v. Prominent Props., LLC,
No. 23-2718, 2024 WL 3292755, at *1 (3d Cir. July 3, 2024). On August 26,
2024, the Third Circuit entered an order awarding Kislak $11,089.60 in
attorney's fees.
On November 6, 2024, plaintiffs filed their complaint in this action
captioned, "complaint filed on remand from [the] United States District Court."
Plaintiffs alleged Miller and Kislak "persistently attempt to collect an alleged
debt in violation of the FDCPA and FCRA. This from an alleged transaction
A-1718-24 4 that Kislak lost at trial in August 2016 (over eight years ago). This, from an
illegal and alleged commission for the purchase of real estate." On November
7, plaintiffs filed a motion to quash the information subpoenas served in the
Middlesex action.
Defendants filed a motion to dismiss for failure to state a claim pursuant
to Rule 4:6-2(e). On January 3, 2025, following oral argument, Judge Thomas
M. Comer entered an order granting defendants' motion supported by an oral
opinion. He concluded the complaint did not set forth a viable cause of action
and plaintiffs were not "able to articulate any basis upon which [they] could
potentially prevail." The judge found "Miller and [Kislak] have a valid
judgment against . . . plaintiffs and they[ are] attempting to use [the] normal
collection process . . . to collect on that judgment." Judge Comer noted
plaintiffs
seem to . . . think they[ are] able to raise defenses that maybe should[ have] been raised in the underlying case before the judgment was entered. But that ship sailed four-and-a-half years ago. There is no appeal. That[ is] . . . a final judgment. The time to appeal . . . has long since expired.
The judge denied plaintiffs' motion to quash because he lacked authority
to quash subpoenas served in the Middlesex action but noted "if [he] did have
A-1718-24 5 authority" he would deny the motion because they were "appropriate
subpoena[s]." This appeal followed.
On appeal, plaintiffs argue the judge incorrectly granted the motion to
dismiss because they "neither had nor have a responsibility . . . to . . . Kislak."
They contend "B&M had no written or oral agreement with . . . Kislak; nor
did . . . Conheeney and Chervenak ever execute an agreement to remit a fee
to . . . Kislak." Plaintiffs also assert defendants "are estopped from asserting
Free access — add to your briefcase to read the full text and ask questions with AI
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-1718-24
B&M ESTATES LLC, BRENDAN CONHEENEY, and MICHAEL CHERVENAK,
Plaintiffs-Appellants,
v.
W. LANE MILLER, INDIVIDUALLY and THE KISLAK COMPANY, INC.,
Defendants-Respondents. ____________________________
Submitted January 13, 2026 – Decided January 23, 2026
Before Judges Perez Friscia and Vinci.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3730-24.
Genesis A. Peduto, attorneys for appellants (Suzy R. Yengo, on the briefs).
W. Lane Miller, attorney for respondents.
PER CURIAM Plaintiffs B&M Estates LLC (B&M), Brendan Conheeney, and Michael
Chervenak appeal from a January 3, 2025 order dismissing their complaint
against defendants The Kislak Company, Inc. (Kislak) and W. Lane Miller, Esq.
without prejudice for failure to state a claim pursuant to Rule 4:6-2(e).1 We
affirm.
The dispute in this case arose out of a lawsuit filed by Kislak against
plaintiffs in Middlesex County, Kislak Co. Inc. v. Prominent Props., LLC, No.
MID-L-3038-14, to recover an unpaid real estate commission on property
located in Lake Como that plaintiffs purchased in 2013. In 2016, following a
bench trial, the court entered judgment in favor of plaintiffs, finding no cause of
action against them. Kislak appealed from that judgment, arguing the court
improperly dismissed its claims against plaintiffs.
We reversed and remanded "to the trial court for specific factual findings
and conclusions of law as to the finding of no cause of action against" plaintiffs.
Kislak Co. Inc. v. Prominent Props., LLC, No. A-2650-17 (App. Div. Apr. 3,
1 Based on the circumstances of this case, we have reviewed the order as final and appealable as of right because it resolved all issues as to all parties. See Rubin v. Tress, 464 N.J. Super. 49, 56 n.3 (App. Div. 2020) (explaining an order that "disposes of all issues as to all parties" may be appealable as of right, "depending on the circumstances") (quotations and citations omitted); see also Morris County v. 8 Court Street Ltd., 223 N.J. Super. 35, 39 (App. Div. 1988).
A-1718-24 2 2019) (slip op. at 8). On June 12, 2020, the court entered an amended judgment
in favor of Kislak and against plaintiffs finding them jointly and severally
responsible for the unpaid real estate commission (the Middlesex judgment).
Plaintiffs appealed from the Middlesex judgment. On October 30, 2020,
their appeal was dismissed for failure to prosecute. Kislak Co. Inc. v. Prominent
Props., LLC, No. A-0193-20 (App. Div. Oct. 30, 2020) (order at ¶¶ 1-2).
In 2022, Kislak served information subpoenas on plaintiffs in connection
with the Middlesex judgment. Plaintiffs did not respond. On March 23, 2022,
Kislak filed a motion to enforce litigants' rights seeking to compel plaintiffs to
respond.
On April 28, 2022, plaintiffs removed the Middlesex action to the United
States District Court for the District of New Jersey pursuant to 28 U.S.C. § 1446
(a) and (d), contending removal was "proper because [of Kislak's] attempts to
collect a debt and [plaintiffs'] [c]ounterclaim[s] involve federal questions." On
May 19, 2022, plaintiffs filed a document titled "counterclaims [and] third-party
complaint with declaratory judgment" in the District Court purporting to assert
"affirmative defenses" to the Middlesex judgment and claims against Kislak and
its attorney in the Middlesex action, Miller, for violations of the Fair Debt
A-1718-24 3 Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 to -1692p, and Fair Credit
Reporting Act (FCRA), 15 U.S.C. §§ 1681 to -1681x, among others.
On August 15, 2023, the District Court entered an order granting Kislak's
motion to remand the case to Middlesex County and awarding it attorney's fees
because plaintiffs "did not have an objectively reasonable basis for removal."
Kislak Co. Inc. v. Prominent Props., LLC, No. CV 22-2482, 2023 WL 5218085,
at *1 (D.N.J. Aug. 15, 2023). On September 8, the District Court entered an
order awarding Kislak $14,450 in attorney's fees.
Plaintiffs appealed to the United States Court of Appeals for the Third
Circuit. On July 3, 2024, the Third Circuit dismissed their appeal for lack of
jurisdiction, affirmed the District Court's award of attorney's fees, and deemed
plaintiffs' appeal "plainly frivolous." Kislak Co. Inc. v. Prominent Props., LLC,
No. 23-2718, 2024 WL 3292755, at *1 (3d Cir. July 3, 2024). On August 26,
2024, the Third Circuit entered an order awarding Kislak $11,089.60 in
attorney's fees.
On November 6, 2024, plaintiffs filed their complaint in this action
captioned, "complaint filed on remand from [the] United States District Court."
Plaintiffs alleged Miller and Kislak "persistently attempt to collect an alleged
debt in violation of the FDCPA and FCRA. This from an alleged transaction
A-1718-24 4 that Kislak lost at trial in August 2016 (over eight years ago). This, from an
illegal and alleged commission for the purchase of real estate." On November
7, plaintiffs filed a motion to quash the information subpoenas served in the
Middlesex action.
Defendants filed a motion to dismiss for failure to state a claim pursuant
to Rule 4:6-2(e). On January 3, 2025, following oral argument, Judge Thomas
M. Comer entered an order granting defendants' motion supported by an oral
opinion. He concluded the complaint did not set forth a viable cause of action
and plaintiffs were not "able to articulate any basis upon which [they] could
potentially prevail." The judge found "Miller and [Kislak] have a valid
judgment against . . . plaintiffs and they[ are] attempting to use [the] normal
collection process . . . to collect on that judgment." Judge Comer noted
plaintiffs
seem to . . . think they[ are] able to raise defenses that maybe should[ have] been raised in the underlying case before the judgment was entered. But that ship sailed four-and-a-half years ago. There is no appeal. That[ is] . . . a final judgment. The time to appeal . . . has long since expired.
The judge denied plaintiffs' motion to quash because he lacked authority
to quash subpoenas served in the Middlesex action but noted "if [he] did have
A-1718-24 5 authority" he would deny the motion because they were "appropriate
subpoena[s]." This appeal followed.
On appeal, plaintiffs argue the judge incorrectly granted the motion to
dismiss because they "neither had nor have a responsibility . . . to . . . Kislak."
They contend "B&M had no written or oral agreement with . . . Kislak; nor
did . . . Conheeney and Chervenak ever execute an agreement to remit a fee
to . . . Kislak." Plaintiffs also assert defendants "are estopped from asserting
claims" pursuant to the "Supremacy Clause of the United States Constitution"
because their actions violated the FDCPA and FCRA.
We review a trial court's decision to grant or deny a motion to dismiss
pursuant to Rule 4:6-2(e) de novo, applying the same standard as the trial court.
Smith v. Datla, 451 N.J. Super. 82, 88 (App. Div. 2017) (citation omitted). In
deciding a motion to dismiss for failure to state a claim, the court must carefully
examine the allegations "to ascertain whether the fundament of a cause of action
may be gleaned even from an obscure statement of claim." Printing Mart-
Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989) (quoting Di
Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div.
1957)).
A-1718-24 6 Based on our de novo review, we are convinced Judge Comer correctly
granted defendants' motion to dismiss. Plaintiffs' complaint does not set forth
the fundaments of any viable cause of action against Kislak, much less against
its attorney, Miller. The complaint contains nothing more than the bald assertion
that defendants violated the FDCPA and FCRA by attempting to collect the
unsatisfied Middlesex judgment. The judge also correctly determined plaintiffs'
motion to quash the information subpoenas in the Middlesex action was
improperly filed in this action.
To the extent we have not specifically addressed any of plaintiffs'
remaining arguments, including their purported defenses to the Middlesex
judgment, it is because they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-1718-24 7