NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0468-24
DEDES REALTY, LLC,
Plaintiff-Respondent,
v.
UNION PLAZA DINER CORP.,
Defendant-Appellant. ___________________________
Argued October 22, 2025 – Decided December 22, 2025
Before Judges Currier and Smith.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. LT-001715-24.
James M. Cutler argued the cause for appellant.
Luke J. Kealy argued the cause for respondent (Greenbaum, Rowe, Smith & Davis LLP, attorneys; Luke J. Kealy, on the brief).
PER CURIAM
In this landlord-tenant matter, defendant appeals from the judgment of
possession entered after it breached a Stipulation of Settlement (Agreement) permitting defendant to remain in the premises, provided it paid the significant
amount of unpaid rent and other expenses. The Agreement permitted plaintiff
to obtain a judgment for possession upon its breach. Based on the clear
contractual language of the Agreement, we affirm.
I.
Plaintiff is the landlord of property that defendant has leased and operated
a restaurant in since 2012. Plaintiff filed an action against defendant in 2024,
alleging defendant had either not paid rent or was habitually late in its rent
payments since January 2023. In June 2024, the parties entered into the
Agreement to resolve the dispute. It stated, in pertinent part:
Defendant shall pay to Plaintiff the amounts attached to this Stipulation of Settlement as Exhibit A which Defendant admits are now due and owing, and AGREES THAT IF DEFENDANT BREACHES THIS AGREEMENT, PLAINTIFF MAY FILE A CERTIFICATION OF BREACH WITH THE COURT, ON FIVE DAYS NOTICE TO DEFENDANT AND DEFENDANT'S ATTORNEY. THE COURT MAY THEN ENTER A JUDGMENT FOR POSSESSION AND A WARRANT OF REMOVAL MAY ISSUE.
The Agreement set forth specific amounts to be paid on certain dates for unpaid
rent and past due sewer charges. At the time, defendant owed plaintiff
approximately $100,000.
A-0468-24 2 On August 20, 2024, plaintiff sent defendant a Notice of Default stating it
had not received the base rent or additional rent for the month of August , and
the 2022 and 2023 sewer charges had not been paid. The email constituted the
five days' notice to defendant that plaintiff was filing a certification of breach
of the Agreement and requesting a Warrant of Removal from the court.
When plaintiff subsequently filed the certification with the court, it also
included new facts constituting additional breaches of the Agreement. They
included defendant's failure to: (1) to make timely payment of the July 23 and
30, 2024 settlement payments; (2) to pay the base and additional rent for
September 2024; and (3) to pay the settlement payment due on September 1,
2024. Plaintiff stated that defendant owed it $46,582 due to its breach. In
response, defendant moved to prevent the issuance of or vacate the Judgment of
Possession and Warrant of Removal. Jun S. Oh, an officer and manager of
defendant, submitted a certification in support of the motion. Oh certified that
defendant "made timely payment of the August rent and other sums due" but the
check was not received, cashed or returned. Oh sent a replacement check via
certified mail on September 3, 2024.
On September 13, 2024, the court entered a Warrant of Removal requiring
defendant to vacate the property. On September 19, plaintiff filed a certification
A-0468-24 3 in opposition to defendant's motion. Plaintiff reiterated defendant breached the
Agreement by failing to comply with its provisions of payment of past due
amounts and sewer charges. Plaintiff also advised that the July settlement
payment checks were returned for insufficient funds and the September rent
checks had not yet been received.
On October 1, the court notified the parties it would conduct a hearing on
defendant's motion on October 7. On October 3, defendant requested an
adjournment of the hearing until October 10, 2024, or the following week
because Oh was out of state. The court denied the adjournment request.
When the parties convened on October 7, the court advised it did not grant
the adjournment because plaintiff opposed it, and the matter had been pending
since April 2024. In addition, since the court was only hearing a motion and
counsel was present, it was not necessary for Oh to also be in court. Moreover,
the Judgment of Possession and Warrant for Removal had been pending for more
than three weeks. Nevertheless, defendant again requested an adjournment until
October 10, and asked the court to transfer the matter to the Law Division to
engage in discovery. The court denied the applications and advised Oh could
appear at the hearing virtually.
A-0468-24 4 Thereafter, Oh testified virtually and stated that the July 23 and 30, 2024
settlement payments were timely made, but they were flagged by the bank as
"suspicious activity" and dishonored. When Oh learned of the bank's action, he
called the bank to advise the checks were not suspicious. Replacement checks
were sent via certified mail in September. The August and September rent
checks were issued after the due date.
Regarding the 2022 and 2023 sewer payments, after the Agreement was
signed, Oh sent an employee to the municipality to pay what was owed.
According to Oh, the employee was told that the bills were paid. Oh then
realized that plaintiff had paid the bills. He testified that he was aware that
defendant was required to pay the sewer bills under the Agreement. A June 30,
2022 sewer receipt was produced, which Oh believed satisfied the 2022 sewer
tax payment required under the Agreement. Oh acknowledged he did not pay
the 2023 sewer bill.
At the conclusion of the hearing, the court issued an oral opinion, finding
defendant breached the Agreement on six occasions, related to late payments of
rent and additional payments due under the Agreement, and failure to pay the
sewer charges. The court found Oh was credible in some respects but
"challenging" otherwise as he did not answer straightforward questions directly.
A-0468-24 5 Regarding the motion to adjourn the hearing, the court reiterated:
But from the [c]ourt's perspective, again, this was a motion that was filed by the tenant. The [c]ourt's expectation is that the tenant be prepared to proceed with their motion on the date that was set forth by the [c]ourt and at least as of Friday they were very much aware that we were proceeding today.
So if they chose to not prepare in a way that was going to have them ready for today, that is a choice that they made and it is a choice that they have to live with and the [c]ourt did, in fact, proceed.
The court rejected defendant's argument that it substantially complied
with the Agreement, stating "[t]here was nothing done. There was a casual
approach to compliance here, but the tenant is asking the [c]ourt to find that
there's some substantial compliance." The court further found that the habitual
late payments also weighed against a finding that defendant was in substantial
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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-0468-24
DEDES REALTY, LLC,
Plaintiff-Respondent,
v.
UNION PLAZA DINER CORP.,
Defendant-Appellant. ___________________________
Argued October 22, 2025 – Decided December 22, 2025
Before Judges Currier and Smith.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. LT-001715-24.
James M. Cutler argued the cause for appellant.
Luke J. Kealy argued the cause for respondent (Greenbaum, Rowe, Smith & Davis LLP, attorneys; Luke J. Kealy, on the brief).
PER CURIAM
In this landlord-tenant matter, defendant appeals from the judgment of
possession entered after it breached a Stipulation of Settlement (Agreement) permitting defendant to remain in the premises, provided it paid the significant
amount of unpaid rent and other expenses. The Agreement permitted plaintiff
to obtain a judgment for possession upon its breach. Based on the clear
contractual language of the Agreement, we affirm.
I.
Plaintiff is the landlord of property that defendant has leased and operated
a restaurant in since 2012. Plaintiff filed an action against defendant in 2024,
alleging defendant had either not paid rent or was habitually late in its rent
payments since January 2023. In June 2024, the parties entered into the
Agreement to resolve the dispute. It stated, in pertinent part:
Defendant shall pay to Plaintiff the amounts attached to this Stipulation of Settlement as Exhibit A which Defendant admits are now due and owing, and AGREES THAT IF DEFENDANT BREACHES THIS AGREEMENT, PLAINTIFF MAY FILE A CERTIFICATION OF BREACH WITH THE COURT, ON FIVE DAYS NOTICE TO DEFENDANT AND DEFENDANT'S ATTORNEY. THE COURT MAY THEN ENTER A JUDGMENT FOR POSSESSION AND A WARRANT OF REMOVAL MAY ISSUE.
The Agreement set forth specific amounts to be paid on certain dates for unpaid
rent and past due sewer charges. At the time, defendant owed plaintiff
approximately $100,000.
A-0468-24 2 On August 20, 2024, plaintiff sent defendant a Notice of Default stating it
had not received the base rent or additional rent for the month of August , and
the 2022 and 2023 sewer charges had not been paid. The email constituted the
five days' notice to defendant that plaintiff was filing a certification of breach
of the Agreement and requesting a Warrant of Removal from the court.
When plaintiff subsequently filed the certification with the court, it also
included new facts constituting additional breaches of the Agreement. They
included defendant's failure to: (1) to make timely payment of the July 23 and
30, 2024 settlement payments; (2) to pay the base and additional rent for
September 2024; and (3) to pay the settlement payment due on September 1,
2024. Plaintiff stated that defendant owed it $46,582 due to its breach. In
response, defendant moved to prevent the issuance of or vacate the Judgment of
Possession and Warrant of Removal. Jun S. Oh, an officer and manager of
defendant, submitted a certification in support of the motion. Oh certified that
defendant "made timely payment of the August rent and other sums due" but the
check was not received, cashed or returned. Oh sent a replacement check via
certified mail on September 3, 2024.
On September 13, 2024, the court entered a Warrant of Removal requiring
defendant to vacate the property. On September 19, plaintiff filed a certification
A-0468-24 3 in opposition to defendant's motion. Plaintiff reiterated defendant breached the
Agreement by failing to comply with its provisions of payment of past due
amounts and sewer charges. Plaintiff also advised that the July settlement
payment checks were returned for insufficient funds and the September rent
checks had not yet been received.
On October 1, the court notified the parties it would conduct a hearing on
defendant's motion on October 7. On October 3, defendant requested an
adjournment of the hearing until October 10, 2024, or the following week
because Oh was out of state. The court denied the adjournment request.
When the parties convened on October 7, the court advised it did not grant
the adjournment because plaintiff opposed it, and the matter had been pending
since April 2024. In addition, since the court was only hearing a motion and
counsel was present, it was not necessary for Oh to also be in court. Moreover,
the Judgment of Possession and Warrant for Removal had been pending for more
than three weeks. Nevertheless, defendant again requested an adjournment until
October 10, and asked the court to transfer the matter to the Law Division to
engage in discovery. The court denied the applications and advised Oh could
appear at the hearing virtually.
A-0468-24 4 Thereafter, Oh testified virtually and stated that the July 23 and 30, 2024
settlement payments were timely made, but they were flagged by the bank as
"suspicious activity" and dishonored. When Oh learned of the bank's action, he
called the bank to advise the checks were not suspicious. Replacement checks
were sent via certified mail in September. The August and September rent
checks were issued after the due date.
Regarding the 2022 and 2023 sewer payments, after the Agreement was
signed, Oh sent an employee to the municipality to pay what was owed.
According to Oh, the employee was told that the bills were paid. Oh then
realized that plaintiff had paid the bills. He testified that he was aware that
defendant was required to pay the sewer bills under the Agreement. A June 30,
2022 sewer receipt was produced, which Oh believed satisfied the 2022 sewer
tax payment required under the Agreement. Oh acknowledged he did not pay
the 2023 sewer bill.
At the conclusion of the hearing, the court issued an oral opinion, finding
defendant breached the Agreement on six occasions, related to late payments of
rent and additional payments due under the Agreement, and failure to pay the
sewer charges. The court found Oh was credible in some respects but
"challenging" otherwise as he did not answer straightforward questions directly.
A-0468-24 5 Regarding the motion to adjourn the hearing, the court reiterated:
But from the [c]ourt's perspective, again, this was a motion that was filed by the tenant. The [c]ourt's expectation is that the tenant be prepared to proceed with their motion on the date that was set forth by the [c]ourt and at least as of Friday they were very much aware that we were proceeding today.
So if they chose to not prepare in a way that was going to have them ready for today, that is a choice that they made and it is a choice that they have to live with and the [c]ourt did, in fact, proceed.
The court rejected defendant's argument that it substantially complied
with the Agreement, stating "[t]here was nothing done. There was a casual
approach to compliance here, but the tenant is asking the [c]ourt to find that
there's some substantial compliance." The court further found that the habitual
late payments also weighed against a finding that defendant was in substantial
compliance with the Agreement.
The court denied defendant's motion to vacate the Judgment for
Possession, finding there were no exceptional circumstances articulated under
Rule 4:50-1(f). Thereafter, the court entered a Judgment for Possession and a
subsequent commercial Warrant of Removal. Defendant was locked out of the
premises in late November 2024.
A-0468-24 6 II.
On appeal, defendant contends the court erred in denying its adjournment
request and in entering the Judgment of Possession.
"[W]e review a trial court's denial of a request for an adjournment 'under
an abuse of discretion standard.'" Escobar-Barrera v. Kissin, 464 N.J. Super.
224, 233 (App. Div. 2020) (quoting State ex rel. Comm'r of Transp. v. Shalom
Money St., LLC, 432 N.J. Super. 1, 7 (App. Div. 2013)). Our Supreme Court
has stated that "[a] motion for an adjournment is addressed to the discretion of
the court, and its denial will not lead to reversal unless it appears from the record
that the defendant suffered manifest wrong or injury." State v. Hayes, 205 N.J.
522, 537 (2011) (quoting State v. Doro, 103 N.J.L. 88, 93 (E. & A. 1926)).
Defendant requested an adjournment on October 3, 2024, and again at the
hearing on October 7. Defendant's attorney advised the court Oh was out of
state and they needed time to prepare for the hearing.
We recognize defendant's agent was out of state and defendant only
requested the motion hearing be postponed for a few days. However, as the
court properly noted, the scheduled date was for a hearing on defendant's motion
to either stop entry of a judgment of possession or vacate one if already entered.
It was not a trial and Oh was not expected to testify at the motion hearing. The
A-0468-24 7 matter had been pending for many months, and the court used its authority to
manage its calendar. Therefore, it was well within the court's discretion to deny
the adjournment request.
Furthermore, the court permitted Oh to testify virtually. A review of his
testimony reflects it did not differ from the information provided in his
certification. In addition, the testimony established defendant breached the
Agreement on multiple occasions. Therefore, we cannot see how a three-day
postponement would have changed the court's ultimate decision.
We turn to defendant's contentions regarding the entry of the Judgment of
Possession. We note initially that we "normally will not entertain cases when a
controversy no longer exists and the disputed issues have become moot." Int'l
Bhd. of Elec. Workers Loc. 400 v. Borough of Tinton Falls, 468 N.J. Super. 214,
224 (App. Div. 2021) (quoting De Vesa v. Dorsey, 134 N.J. 420, 428 (1993)).
"An issue is moot 'when [our] decision sought in a matter, when rendered, can
have no practical effect on the existing controversy.'" Brehme v. Irwin, 259 N.J.
505, 511 (2025) (quoting In re Proposed Constr. of Compressor Station (CS327),
258 N.J. 312, 327 (2024)). Here, defendant has vacated the premises and so the
issue of the validity of the judgment for possession is moot. See Daoud v.
Mohammad, 402 N.J. Super. 57, 59 (App. Div. 2008) (finding the tenant's right
A-0468-24 8 to appeal from the judgment for possession moot because the "defendant vacated
the commercial premises, which ha[d] since been re-rented.").
We denied plaintiff's prior motion for summary disposition on grounds of
mootness. That is because defendant's appeal of the court's denial of its
adjournment request was not moot. Had we concluded the court abused its
discretion in denying the adjournment, our decision would have affected the
entry of the Judgment of Possession.
In light of our determination regarding the order denying the adjournment,
any arguments regarding the entry of the Judgment of Possession are moot.
Nevertheless, we briefly address the issue.
Our review of a court's interpretation of a contract, "[i]n the absence of a
factual dispute," is de novo. Serico v. Rothberg, 234 N.J. 168, 178 (2018) (citing
In re Cnty. of Atl., 230 N.J. 237, 255 (2017)). "[A] settlement agreement
between parties is a contract governed by basic contract principles, . . . [thus,] a
court should enforce a settlement agreement as it would any other contract."
Capparelli v. Lopatin, 459 N.J. Super. 584, 603-04 (App. Div. 2019).
The Court has held that "[t]he plain language of the contract is the
cornerstone of the interpretive inquiry." Barila v. Bd. of Educ. of Cliffside Park,
241 N.J. 595, 616 (2020). "[W]hen the intent of the parties is plain and the
A-0468-24 9 language is clear and unambiguous, a court must enforce the agreement as
written, unless doing so would lead to an absurd result." Ibid. (quoting Quinn
v. Quinn, 225 N.J. 34, 45 (2016)).
Plaintiff had filed several actions over the years against defendant for
breach of their lease agreement. The 2024 complaint was resolved by the
Agreement which was detailed in the number and amount of payments, their due
date and the consequences of any failure to comply with the terms. After
considering the parties' certifications, Oh's testimony and argument of counsel,
the court found defendant had breached the Agreement on six occasions.
Defendant does not really dispute those findings but instead urges this court, as
it did before the trial court, to find that it substantially complied with the contract
and the breaches were trivial.
The Agreement was clear on its face and unambiguous. If defendant did
not pay the required sums by the requisite date, then they were in breach of the
Agreement. In the event of any breach, the Agreement permitted defendant to
request the court to issue a Judgment of Possession and Warrant of Removal.
The court did not err in finding multiple breaches of the Agreement and entering
Judgment of Possession.
Affirmed.
A-0468-24 10