NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2276-24
BODYTOPIA AESTHETICS & WELLNESS, LLC, d/b/a BODYTOPIA and AWILDA VASQUEZ,
Plaintiffs,
v.
JOMAR REALTY, LLC and MARIO ECHEVARRIA,
Defendants-Respondents,
and
JACQUELINE MONEGRO, and BODYSTAR LLC, d/b/a BODY STAR SPA CENTER,
Defendants-Appellants,
and
MICHELLE ILIANA MEJIA BALDERA,
Defendant.
Argued June 4, 2026 – Decided August 24, 2026 Before Judges Marczyk and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2546-23.
Michael Wiseberg argued the cause for appellants.
Thomas B. Gardner argued the cause for respondents (Skolnick Legal Group, PC, attorneys; Martin P.
Skolnick and Thomas B. Gardner, on the brief).
PER CURIAM Defendants Jacqueline Monegro and BodyStar LLC, d/b/a Body Star Spa Center (BodyStar) (collectively, the BodyStar defendants) appeal from the following orders: (1) an August 21, 2024 order granting co-defendants Jomar Realty, LLC (Jomar) and Mario Echevarria's (collectively, the Jomar defendants) motion to amend their answer; (2) an October 9, 2024 order granting summary judgment in favor of the Jomar defendants against the BodyStar defendants; (3) a November 12, 2024 order for entry of judgment in favor of the Jomar defendants against the BodyStar defendants; and (4) a March 31, 2025 order denying the BodyStar defendants' motion to vacate those three orders. We affirm.
A-2276-24
3
I.
In November 2020, Jomar, through its member Echevarria, entered into a commercial lease for a West New York property with plaintiff Bodytopia Aesthetics & Wellness, LLC (Bodytopia), through plaintiff Awilda Vasquez (collectively, the Bodytopia plaintiffs). When Bodytopia subsequently failed to make monthly rental payments, the Jomar defendants filed a complaint for damages in the Law Division along with a concurrent eviction action for non- payment of rent in the Special Civil Part.
Although the Jomar defendants and the Bodytopia plaintiffs executed a stipulation of settlement in the eviction action, it was rejected by the court, and the parties were directed to appear for trial. The Jomar defendants' counsel appeared for trial, but the Bodytopia plaintiffs did not, and on March 31, 2022, the court entered a judgment for possession by default against the Bodytopia plaintiffs in the landlord-tenant matter.
Following the entry of judgment, Jomar informed Bodytopia it would not immediately seek removal if Bodytopia complied with the terms of the settlement. However, by late August 2022, Bodytopia again failed to make the required payments, and the Jomar defendants subsequently obtained a warrant of removal.
A-2276-24
4
After being served with the warrant, Bodytopia failed to remove its property from the premises and continued to default on its payment obligations. In December 2022, Jomar, through Echevarria, and BodyStar, through Monegro and defendant Michelle Iliana Mejia Baldera, entered into a lease agreement for the property. The following month, the court entered default judgment against the Bodytopia plaintiffs in favor of the Jomar defendants in the Law Division matter.
In July 2023, the Bodytopia plaintiffs filed an order to show cause and verified complaint in this action. They alleged, in part, the Jomar defendants converted Bodytopia's property left in the leased premises, which Jomar then unlawfully leased to BodyStar. The complaint asserted: conversion against the Jomar defendants and the BodyStar defendants (count one); unlawful distraint against the Jomar defendants (count two); and misrepresentation against Echevarria. The Jomar defendants moved to dismiss counts one and two of the complaint under Rule 4:6-2(e), and the BodyStar defendants filed an answer.
On September 18, 2023, the court granted the Jomar defendants' motion in part, dismissing count one of the complaint as to them without prejudice.1
1 On appeal, the BodyStar defendants contend count one was dismissed as to them, but the order states count one was dismissed only as to the Jomar defendants.
A-2276-24
5
After the Jomar defendants filed their answer to the remaining counts, the court denied the order to show cause. The parties were ordered to mediation, which was unsuccessful, with a discovery end date of January 18, 2024.
Neither the Jomar defendants nor the BodyStar defendants exchanged discovery or noticed any depositions, and none of the parties sought to extend discovery before the deadline. Almost four months after the discovery end date, the BodyStar defendants moved to reopen discovery, which the Jomar defendants opposed. In June 2024, the court denied the motion on procedural grounds, explaining, "[Rule] 4:24-1(c) [states] a proposed form of [o]rder for a discovery extension shall describe the proposed discovery to be completed and set forth the proposed dates of completion. This [o]rder violates that rule." The court ordered, "Any further requests to extend discovery must be made by formal motion."
The following month, the Jomar defendants moved to amend their answer to assert crossclaims for breach of lease, breach of guaranty, book account, and unjust enrichment against the BodyStar defendants, and to add Baldera as a defendant. The Jomar defendants asserted the entire controversy doctrine required the claims to be litigated in the pending action. The BodyStar
A-2276-24
6
defendants did not oppose the motion, and the court granted it on August 21, 2024.
Nine days later, the Jomar defendants moved to dismiss the Bodytopia plaintiffs' complaint and for summary judgment on their crossclaims against the BodyStar defendants. As to the crossclaims, the Jomar defendants contended there were no genuine issues of material fact as to the breach of the lease and guaranty, and they were entitled to judgment as a matter of law. They submitted a ledger showing BodyStar's outstanding balance was $124,757.95, plus reasonable attorneys' fees and expenses. Monegro filed an answer to the crossclaims on September 19, 2024, and opposition to the summary judgment motion four days later. The opposition is not in the record on appeal, but the court summarized the filing:
Monegro opposes [the Jomar defendants'] motion for summary judgment as it pertains to the cross[]claims against her. Specifically, . . . Monegro asserts that, since [the Jomar defendants] just brought this claim against her a month ago when they filed an [a]mended [a]nswer with a cross[]claim, summary judgment is premature at this juncture due to a lack of proof.
After considering argument, the court entered an October 9, 2024 order dismissing the Bodytopia plaintiffs' complaint against the Jomar defendants and
A-2276-24
7
granting summary judgment in favor of the Jomar defendants as to their claims against the BodyStar defendants. Relevant here, the court observed:
The [c]ourt is not convinced that a genuine issue of material fact exists here. Rather, the undisputed facts show that in December . . . 2022, [Jomar] and [BodyStar] entered into a [l]ease for the [p]roperty.
Pursuant to such [l]ease, [BodyStar] agreed to make monthly base rental payments for the [p]roperty. In addition to monthly rent payments, [BodyStar] also agreed to make payment of a pro rat[a] share of real estate taxes, electricity and gas, cleaning costs, garbage removal, maintenance charges, and water charges.
Further, and pursuant to the [l]ease, [BodyStar] agreed to pay a late charge of [five percent] of the monthly rent for each month in which [Jomar] did not receive the full monthly rent payment for more than five . . . days once it became due and payable. . . . The undisputed facts show that [BodyStar] occupied the premises after January . . . 2023. An invoice of [BodyStar's] rent payments shows a partial payment on June 1, 2023, and then an unpaid balance from July 1, 2023 until the present. . . .
. . . Monegro has failed to set forth any certification or evidence to support an argument that Body[]Star had paid rent after the partial payment in June . . . 2023. Although . . . Monegro asserts in her opposition that, because [the Jomar defendants] just brought this claim against her a month ago, summary judgment is premature, . . . Monegro has failed to set forth any genuine dispute of material fact as it pertains to this claim. As such, the [c]ourt does not find that a genuine issue of material fact exists as to [the Jomar defendants'] breach of contract counterclaims against . . . Body[]Star and . . . Monegro.
A-2276-24
8
The Jomar defendants then moved for entry of judgment, which the BodyStar defendants opposed. Because counsel for the BodyStar defendants did not appear for the virtual argument, the court declined to consider argument from the Jomar defendants' counsel. The court noted the BodyStar defendants' opposition to the motion requested 120 days of discovery on the crossclaims but found the request unavailing because BodyStar did not move to extend discovery, noting: "You have to file . . . a formal cross[-]motion to get relief. You can't just . . . ask for it by letter." Thus, the court entered the November 12, 2024 judgment in the amount of $124,757.95 plus interest and costs. Subsequently, neither party appeared for trial on the Bodytopia plaintiffs' claims against the BodyStar defendants, and on January 29, 2025, the court entered an order of default, dismissing the Bodytopia plaintiffs' complaint and striking the BodyStar defendants' answer.
On February 26, 2025, the BodyStar defendants filed a motion to vacate the August 21, October 9, and November 12, 2024 orders pursuant to Rule 4:50- 1. They contended they were severely prejudiced and denied their right to conduct discovery on the Jomar defendants' crossclaims because the Jomar defendants: waited until after the discovery end date had passed to assert these claims; opposed their motion to reopen discovery, then amended its answer to
A-2276-24
9
add new claims; and immediately moved for summary judgment before any discovery could be conducted regarding the new claims. The BodyStar defendants alleged this sequence of events demonstrated the Jomar defendants' intent to circumvent the discovery rules.
The BodyStar defendants also argued: the order granting the Jomar defendants leave to amend their answer failed to provide for an extension or reopening of discovery; the summary judgment motion was not properly served; and the certifications in support of summary judgment lacked personal knowledge as required by Rule 1:6-6. They contended these facts established exceptional circumstances justifying relief under Rule 4:50-1(f).
After considering argument, the court denied the motion in a March 31, 2025 order. In its written opinion, the court addressed the BodyStar defendants' contentions with regard to each order. Beginning with the August 21, 2024 order granting the Jomar defendants' motion for leave to amend their answer, the court found
enforcement of the August [21], 2024 [o]rder would not cause an unjust result as [the BodyStar defendants were] represented by counsel, [were] duly served, and never filed responsive papers to [the Jomar defendants']
motion seeking leave to amend [their a]nswer. The [c]ourt does not find [the BodyStar defendants']
argument that the August [21], 2024, [o]rder was improperly granted after the [discovery end date] had
A-2276-24
10
already passed and since no discovery had been exchanged between [the BodyStar defendants] and [the Jomar defendants] persuasive. Rather, [the BodyStar defendants] engaged in one attempt to extend discovery which was procedurally denied, and which could have been easily remedied by way of refiling the motion. As such, the [c]ourt does not find that [the BodyStar d]efendants have demonstrated exceptional circumstances as per the August [21], 2024, [o]rder nor how enforcement of this [o]rder would be unjust, oppressive, or inequitable.
Addressing the October 9, 2024 order granting summary judgment and the November 12, 2024 entry of judgment, the court observed:
Notably, attached to [the Jomar defendants']
notice of motion for partial summary judgment was a certification of service which stated that [the BodyStar defendants'] previous counsel was served via e[C]ourts.
. . . Ultimately, the New Jersey Court Rules provide that service via an email address listed on e[C]ourts is proper service. See R. 1:5-2. As such, [the BodyStar defendants'] previous counsel was appropriately served the notice of motion for partial summary judgment via an email to the listed address on e[C]ourts. However, even assuming arguendo that such service was not properly effectuated, [the BodyStar defendants]
nevertheless filed responsive papers (i.e. opposition papers) to [the Jomar defendants'] motion for partial summary judgment and even appeared before this [c]ourt for oral argument on September 26, 2024. As the underpinning of the rules governing service of process is procedural due process to the defendant, that is, assuring the defendant has notice of the action and an opportunity to defend, there is nothing here to suggest that [the BodyStar defendants] were deprived of notice of the motion for partial summary judgment
A-2276-24
11
and an opportunity to defend themselves. See W.S.
Frey Co. v. Heath, 18 N.J. 321, 325 (1999).
Thus, as final judgment has now been entered, [the BodyStar defendants] are improperly arguing the correctness of these prior [o]rders without providing the [c]ourt with any exceptional circumstances and without demonstrating how enforcement of these [o]rders would be unjust, oppressive or inequitable.
The fact that this case was not properly litigated cannot be a basis to vacate under [Rule] 4:50-1(f) after judgment has been entered. Accordingly, this motion is denied in its entirety.
II.
On appeal, the BodyStar defendants largely reprise the arguments they unsuccessfully advanced before the trial court. We first address the order permitting the Jomar defendants to amend their answer to include a crossclaim against the BodyStar defendants, which we review for abuse of discretion. Port Liberte II Condo. Ass'n, Inc. v. New Liberty Residential Urb. Renewal Co., 435 N.J. Super. 51, 62 (App. Div. 2014). "'Rule 4:9-1 requires that motions for leave to amend be granted liberally' and that 'the granting of a motion to file an amended complaint always rests in the court's sound discretion.'" Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006) (quoting Kernan v. One Wash. Park Urb. Renewal Assocs., 154 N.J. 437, 456-57 (1998)). In exercising its discretion, a court must engage in "a two-step process: whether the non-moving
A-2276-24
12
party will be prejudiced, and whether granting the amendment would nonetheless be futile." Ibid.
The BodyStar defendants did not oppose the motion to amend. In the absence of any objection from the BodyStar defendants, there was no basis upon which the trial court could have found they would have been prejudiced by the amendment or that the amendment would have been futile.
Relying on the entire controversy doctrine, the BodyStar defendants contend the court nevertheless erred in permitting the amendment because the Jomar defendants' crossclaims did not have a sufficient nexus to the initial case in controversy. This argument is unavailing because it contorts the contours of the entire controversy doctrine.
The entire controversy doctrine is an equitable principle requiring a party "to assert in one action all claims arising from a single controversy." Thomas v. Hargest ex rel. Est. of Hargest, 363 N.J. Super. 589, 595 (App. Div. 2003); see Carrington Mortg. Servs., LLC v. Moore, 464 N.J. Super. 59, 68 (App. Div. 2020) ("Subject to equitable considerations, the [entire controversy] doctrine disfavors successive suits regarding the same controversy."). To preclude a claim under the entire controversy doctrine, a party must show:
(1) the judgment in the prior action must be valid, final, and on the merits; (2) the parties in the later action must
A-2276-24
13
be identical to or in privity with those in the prior action; and (3) the claim in the later action must grow out of the same transaction or occurrence.
[McNeil v. Legis. Apportionment Comm'n of State, 177 N.J. 364, 395 (2003).]
Subject to certain exceptions, Rule 4:30A provides: "Non-joinder of claims required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine."
In sum, the entire controversy doctrine precludes a party from filing a new complaint alleging claims that should have been brought in a prior action. It acts as a bar to future litigation, not to permissive crossclaims such as the one here. Rather, Rule 4:7-5(a), which governs such claims, permits a pleading to state a crossclaim by one party against a co-party.
We are unpersuaded the trial court abused its discretion in permitting the amendment or in denying the motion to vacate the order. While such an amendment may be accompanied by an extension of discovery, the absence of any opposition to the motion or a motion to reopen discovery caused the preclusion of discovery. As the trial court noted, the missteps in litigation strategy does not constitute exceptional circumstances nor demonstrate how enforcement of the order would be unjust, oppressive, or inequitable.
A-2276-24
14
Next, the BodyStar defendants argue the trial court erred in granting summary judgment in favor of the Jomar defendants because the motion was premature under Rule 4:46-1, was not properly served in accordance with Rules 1:5-1 and -2, and denied them any meaningful opportunity to conduct discovery on the newly asserted crossclaims. The BodyStar defendants also assert the certifications submitted in support of summary judgment were not done with personal knowledge of the facts and did not address key factual issues relevant to the crossclaims. For instance, the Jomar defendants did not state when BodyStar surrendered the leased premises or what steps were taken to mitigate its claimed damages. The BodyStar defendants further contend the certification contradicts the ledger regarding the last payment received by Jomar.
We address these contentions in turn, beginning with the procedural issues. For the first time on appeal, the BodyStar defendants challenge the timing of the motion for summary judgment under Rule 4:46-1. We do not consider questions or issues not presented to the trial court unless they go to the jurisdiction of the trial court or concern matters of great public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Neither exception is present here, and we therefore decline to consider this newly minted argument.
A-2276-24
15
The BodyStar defendants also reprises their contention the motion was not properly served, which was considered and rejected by the trial court as without basis in fact or law. The record demonstrates the motion was served via eCourts to the BodyStar defendants' counsel of record, which constitutes effective service under Rules 1:5-1 and -2. "The critical components of due process are adequate notice, opportunity for a fair hearing and availability of appropriate review." City of Passaic v. Shennett, 390 N.J. Super. 475, 485 (App. Div. 2007) (emphasis omitted) (quoting Borough of Keyport v. Maropakis, 332 N.J. Super. 210, 220 (App. Div. 2000)). Thus, even if service was somehow insufficient, the record reflects counsel opposed the motion and appeared for argument, demonstrating adequate notice and an opportunity to be heard.
We are unconvinced the certifications in support of summary judgment were fatally deficient. Jomar's managing member, Echevarria, attested to the facts based not only on his review of the business records but on his knowledge of Jomar's policies and procedures. The court did not err in considering his certification because it demonstrated sufficient personal knowledge of the documents.
We turn to the order granting summary judgment, which we review de novo, applying the same standard used by the trial court. Samolyk v. Berthe,
A-2276-24
16
251 N.J. 73, 78 (2022). We must decide whether "there is [a] genuine issue as to any material fact" when the evidence is "viewed in the light most favorable to the non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014) (first quoting R. 4:46-2(c); and then quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). "To decide whether a genuine issue of material fact exists, the trial court must 'draw[ ] all legitimate inferences from the facts in favor of the non-moving party.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (alteration in original) (quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)).
"The court's function is not 'to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Rios v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021) (quoting Brill, 142 N.J. at 540). "If there is no genuine issue of material fact, we must then 'decide whether the trial court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). On de novo review, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Rowe v. Bell & Gossett Co., 239 N.J. 531, 552 (2019) (alteration
A-2276-24
17
in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Under Rule 4:46-1, "[a] party seeking any affirmative relief may, at any time after the expiration of [thirty-five] days from the service of the pleading claiming such relief, move for a summary judgment or order on all or any part thereof or as to any defense." Although a party is permitted to move for summary judgment even if discovery is incomplete, "[g]enerally, summary judgment is inappropriate prior to the completion of discovery." Wellington v. Est. of Wellington, 359 N.J. Super. 484, 496 (App. Div. 2003). However, claims of incomplete discovery will not defeat summary judgment if further discovery will not patently alter the outcome. Ibid.
A party opposing a motion for summary judgment on the grounds discovery is incomplete must "demonstrate with some degree of particularity the likelihood that further discovery will supply the missing elements of the cause of action." Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015) (quoting Wellington, 359 N.J. Super. at 496). And in opposing summary judgment, a party must identify the specific discovery needed. See Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007) ("A party opposing summary judgment on the ground that more discovery is needed must specify
A-2276-24
18
what further discovery is required, rather than simply asserting a generic contention that discovery is incomplete.") Importantly, "discovery must proceed in a timely fashion." J. Josephson, Inc. v. Crum & Forster Ins. Co., 293 N.J. Super. 170, 204 (App. Div. 1996). "[A] claim of incomplete discovery will not defeat a summary judgment motion when the party opposing the motion has not sought discovery within the time prescribed by [Rule] 4:24-1 . . . ." Pressler & Verniero, Current N.J. Court Rules, cmt. 2.3.3 on R. 4:46-2 (2026).
The undisputed record reflects Jomar entered into a lease agreement with BodyStar, with Monegro and Baldera as guarantors. The lease agreement required BodyStar to pay monthly base rent and an 11.63% pro rata share of real estate taxes, electricity, gas, cleaning costs, garbage removal, maintenance charges, and water charges, plus 5% of the monthly rent for any month in which BodyStar failed to pay the full amount due for more than five days. Jomar's ledger indicated BodyStar paid the monthly rent and fees from February 1 through May 1, 2023, and then made a partial payment for the amount due on June 1, 2023. As the trial court noted, Monegro's opposition to the motion did not create any genuine issues of material fact. To the extent the BodyStar defendants dispute the terms of the lease or payments made, these contentions should have been made in a certification in opposition to the summary judgment
A-2276-24
19
motion. The trial court correctly concluded the Jomar defendants were entitled to summary judgment.
Turning to the final order on appeal, a motion to vacate under Rule 4:50-
1 "is a determination left to the sound discretion of the trial court, guided by principles of equity." F.B. v. A.L.G., 176 N.J. 201, 207 (2003). As such, a trial court's decision under Rule 4:50-1 should be given "substantial deference," and will not be reversed unless shown to be "a clear abuse of discretion." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
Relief under Rule 4:50-1(f) "is available only when truly exceptional circumstances are present and only when the court is presented with a reason not included among any of the reasons subject to the one[-]year limitation." Baumann v. Marinaro, 95 N.J. 380, 395 (1984). "Whether exceptional circumstances exist is determined on a case[-]by[-]case basis according to the specific facts presented." In re Guardianship of J.N.H., 172 N.J. 440, 474 (2002). "The rule is limited 'to situations in which, were it not applied, a grave
A-2276-24
20
injustice would occur." US Bank Nat'l Ass'n, 209 N.J. at 484 (quoting Hous. Auth. of Morristown v. Little, 135 N.J. 274, 289 (1994)). The movant must demonstrate that continued enforcement of the judgment would be "unjust, oppressive or inequitable." Quagliato v. Bodner, 115 N.J. Super. 133, 138 (App. Div. 1971).
We recognize the BodyStar defendants were required to oppose summary judgment without the benefit of additional discovery, but this disadvantageous position was caused by an unsuccessful litigation strategy, not exceptional circumstances. Our task is to review the orders entered by the trial court under the appropriate standards of review. Having done so, we discern no abuse of discretion in the court's denial of the motion to vacate the orders.
Affirmed.
A-2276-24