NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0860-22
ERIC GERSTMANN, JANINE LUPPINO, and RONALD LUPPINO,
Plaintiffs-Appellants,
and
ALI VEDARARZ, SHIRIN VEDARARZ, ROSALINDA PALAD, CYNTHIA AGNESE, ROEL PEREZ, YURIDIA PENA, CAROL VILLAVICENCIO, and MONICA TOGARU,
Plaintiffs,
v.
EXECUTIVE HOUSE CONDOMINIUM ASSOCIATION, INC., EXECUTIVE HOUSE CONDOMINIUM BOARD OF DIRECTORS, MARLENE COSTAGLIOLA, JIM O'CONNOR, IRA GOODMAN, KAREN ANDERSON, NANCY WYMER, ALTICE USA, d/b/a CABLEVISION SYSTEMS CORPORATION, and OPTIMUM,
Defendants-Respondents. ___________________________________ Submitted January 10, 2024 – Decided January 17, 2025
Before Judges Gummer and Walcott-Henderson.
On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-000003-22.
Jared M. Lans & Associates, attorneys for appellants (Jared M. Lans and Nicholas G. Gallinger, on the briefs).
Kirmser, Lamastra, Cunningham & Skinner, attorneys for respondents Executive House Condominium Association, Inc., Executive House Condominium Board of Directors, Marlene Costagliola, Jim O'Connor, Ira Goodman, Karen Anderson and Nancy Wymer (Timothy P. Malacrida, of counsel and on the brief).
Lester Schwab Katz & Dwyer, LLP, attorneys for respondent Altice USA d/b/a Cablevision Systems Corporation and Optimum (Alfredo Javier Alvarado, on the brief).
The opinion of the court was delivered by
GUMMER, J.A.D.
In this condominium-association dispute, plaintiffs Eric Gerstmann,
Janine Luppino, and Ronald Luppino challenged the authority of the
condominium's association and board of directors to enter into bulk-billing
agreements with a cable-television provider. They appeal from two summary-
A-0860-22 2 judgment orders entered in defendants' favor. Having conducted a de novo
review, we affirm.
I.
We draw these facts from the summary-judgment record, "view[ing] the
evidence in the light most favorable to [plaintiffs,] the non-moving part[ies]."
Comprehensive Neurosurgical, P.C. v. Valley Hosp., 257 N.J. 33, 71 (2024)
(first alteration in original) (quoting Qian v. Toll Bros., Inc., 223 N.J. 124, 134-
35 (2015)).
The Executive House Condominium is a multi-unit building located at 301
Beech Street in Hackensack. It consists of 127 residential units and four
commercial units. The Executive House Condominium Association, Inc.
(Association) is governed by its Board of Directors. Defendants Marlene
Costagliola, James O'Connor, Ira Goodman, Nancy Wymer, and Karen
Anderson became Board members in 2007, 2015, 2011, 2017, and 2016,
respectively, and were Board members when plaintiffs filed this lawsuit. We
refer to the Association, the Board, and the Board members collectively as the
Executive House defendants.
Under the Association's Articles of Incorporation, the Association is
permitted to exercise powers and perform duties as set forth under the
A-0860-22 3 condominium Master Deed and the Association's By-Laws (collectively the
Governing Documents) and granted by statute. According to the By-Laws, the
Association was "formed to serve as means through which the condominium
unit owners . . . may take action with regard to the administration, management,
repair and operation of the Property, in accordance with the provision s of a
master deed . . . ."
Article IV, Section 2 of the By-Laws outlines the Board's powers and
duties and states:
The Board . . . shall have the powers and duties necessary for the administration of the affairs of the Association and may do all such acts and things, except as by law or by the Master Deed or by these By-Laws, may not be delegated to the Board . . . by Unit Owners. Such powers and duties of the Board . . . shall include but shall not be limited to the following:
(a) The operation, care, upkeep, repair and replacement of the Common Elements and services and personal property of the Association, if any, together with the right to use all funds collected by the Association to effectuate the foregoing.
(b) Determination of the Common Expenses required for the affairs and duties of the Association
.... The Board . . . shall, prior to the beginning of each fiscal year of the Association, prepare a budget which shall determine the amount of common charges payable by each Unit to meet the Common Expenses of
A-0860-22 4 the Association . . . . The Board . . . shall allocate and assess such charges among the Unit Owners according to and in the percentage of their respective ownership of Common Elements as set forth in the Master Deed. Unit Owner shall be advised of the amount of the Common Expenses payable by each of them and these charges shall be paid to the Association in twelve (12) equal monthly installments on the 1st day of each month of the fiscal year in advance at the office of the Association. A statement of the aforesaid yearly charges shall be mailed to each Unit Owner at the commencement of each fiscal year and no further billing by the Association shall be required.
....
(c) Collection of the Common Expenses and assessments from the Unit Owners together with any costs and expenses of collection thereof.
(s) To have and to exercise any and all powers, rights and privileges which a corporation organized under the nonprofit Corporation Law of the State of New Jersey by law may now or hereafter have or exercise.
Paragraph (b) of Section 2 includes the following limitation of the Board's
authority:
Anything in these By-Laws or elsewhere to the contrary notwithstanding, the Board . . . shall not have the authority, except in the case of an extreme emergency, without the consent of the Unit Owners holding majority of the shares in the Common Elements to expend in excess of $5,000, on any item of expense
A-0860-22 5 in any year in which it is not specified or if specified, over the amount indicated for such item in the aforesaid budget for such year.
Under the Master Deed, the Association is "comprised exclusively of Unit
Owners to effect the management, maintenance, repair and replacement of the
Property pursuant to the [New Jersey Condominium] Act [(N.J.S.A. 46:8B-1 to
-38) (the Act)], this Master Deed and the 'By-Laws.'" Paragraph 27 of the
Master Deed, which is entitled "Ratification, Confirmation and Approval of
Agreements," provides, among other things, that:
The purchase of a Unit, and the acceptance of a deed therefor by any party shall constitute the ratification, confirmation and approval by such purchaser, his heir, legal representative, successors and assigns of the propriety and legality of said agreement or said agreements, or any other agreements authorized and permitted by the Act, this Master Deed and the By- Laws.
The Master Deed defines "Common Elements" as "all parts of the Property
other than the Units, including the items set forth in the Condominium Act,
excluding the Unit or Units for janitor and/or superintendent." Pursuant to the
Master Deed, each unit owner is required to pay "Common Expenses," meaning
the owner's "proportionate share of all the expenses of maintenance, repair,
replacement, administration and operation of the Common Elements." A unit
owner's "proportionate share" of the Common Expenses is "the same as the
A-0860-22 6 proportionate, undivided interest of the Unit Owner in the Common Elements as
set forth in" the Master Deed. Regarding utilities, paragraph 15 of the Master
Deed provides: "Each Unit Owner shall pay for his own telephone and cable
television and other utilities which are separately metered or billed to each user
by the respective utility company. Utilities which are not separately metered or
billed shall be treated as part of the Common Expense charges."
On February 27, 2008, the Association held an open session. The minutes
of that meeting contained the following entry:
Bulk Cable TV A survey was delivered to every unit requesting interest in adding a service provider for Cable TV. Management stated the survey had a positive response and a representative will be in the lobby on Tuesday, March 4, 2008 to answer any questions concerning the Cable. Once a final tally is established the Building will make a decision. Two options were discussed. Several residents asked questions about Triple play.
Minutes from the April 23, 2008 open session stated the Board had "decided to
proceed with the Bulk Cable TV."
On May 22, 2008, defendant Costagliola, who was then the president of
the Board, signed an "Access Agreement" (Agreement) with a "Bulk Billing
Rider" (Rider) with Cablevision of Oakland, LLC (the Company). Under the
Agreement, the Company agreed to "provide broadband communications
A-0860-22 7 services . . . to the Premises by placing, maintaining, affixing, and attaching
cables, wires, equipment, molding and appurtenant devices . . . ."
Under the Rider, the Company agreed "to provide the cable television
services at the level currently known as iO Family, including one (1) box and
converter and remote, to one (1) outlet, in each unit at the Premises." In return,
the Association agreed to pay the Company "a monthly fee" of a certain amount
"per residential unit . . . based on distribution of cable television services,
including one (1) box and converter and remote to one (1) outlet in each of [the]
. . . units." The Association agreed it would "not separately bill any occupant
for the cable television services at the iO Family level, but [would] provide such
cable television services as part of the . . . common charges or rent." "Individual
occupants" could "obtain additional outlets or subscribe to certain additional
programming or services offered by" the Company. Those "additional purchases
[would] be billed by [the Company] directly to the occupant . . . ."
Pursuant to the Rider, the bulk-billing arrangement had an initial term of
five years, which began on June 1, 2008. The Company and the Association
renewed the Rider on April 3, 2012, for three additional years; on March 31,
2015, for five additional years; and on February 26, 2020, for five additional
years. Under the 2020 Rider, the Association was liable for 100% of the monthly
A-0860-22 8 fee multiplied by the number of months left on the five-year extension in the
event of an early termination of the Rider for any reason other than the
Company's breach. The substantive provisions of the 2020 Rider for the most
part tracked the provisions in previous Riders. Over time, the monthly fee has
increased, and the specific cable packages provided have changed.
According to the Executive House defendants, twenty-five units in 2008
"had either basic cable at a rate below the bulk billing rate or no cable at all.
Those units were not forced to get cable and were allowed to be exempt from
the charge. As those units were transferred, they became subject to the bulk
billing arrangement." The Executive House defendants assert unit purchasers
"are advised before closing of the mandatory cable charge."
According to a "May 1, 2020 - April 30, 2021 Approved Budget," the
Association included $75,866 for "Cable Service" in the 2020 to 2021 budget.
According to a "May 1, 2021 - April 30, 2021 Approved Budget," the
Association included $78,760 for "Cable Service" in the 2021 to 2022 budget.
According to the Executive House defendants, the Association "has not spent
more than $5,000 in unbudgeted funds on the Cable charge . . . ."
The Luppinos purchased Unit 12E in the Executive House Condominium
in 2016. Gerstmann purchased Unit 9G in 2021. Plaintiffs and the Executive
A-0860-22 9 House defendants disagree about whether plaintiffs were advised before they
purchased their units that unit owners were required to pay cable fees.
On January 3, 2022, Gerstmann and the Luppinos filed a verified
complaint against "Altice USA d/b/a Cablevision Systems Corporation and
Optimum" (Cablevision) and the Executive House defendants. Plaintiffs
asserted the Board had entered into the Agreement and Rider "without proper
authority" and sought a judgment declaring them "null and void," enjoining the
Association and Board from invoicing plaintiffs for the Cablevision service
charges, declaring those charges void, and requiring the Association and Board
to remove those charges from plaintiffs' accounts and refund plaintiffs the
Cablevision service charges they already had paid, if any. Plaintiffs also
claimed the Board and its members had breached their fiduciary duties to
plaintiffs by "violating the Association's Governing Documents, and New Jersey
law." In the complaint, plaintiffs stated "Cablevision is a party [d]efendant by
virtue of being a stakeholder as a party to the Agreement and a provider of cable
television services to Unit Owners." They also acknowledged that "[t]he subject
matter of the services provided pursuant to the Agreement are not Common
Elements as defined in the Governing Documents."
A-0860-22 10 Plaintiffs subsequently filed an amended complaint, naming eight
additional unit owners as plaintiffs. None of those additional plaintiffs
submitted a certification in opposition to defendants' summary-judgment
motions, and none joined in this appeal.
In a March 14, 2022 case management order, the court ordered the parties
to complete written discovery by June 1, 2022, depositions of parties and fact
witnesses by September 3, 2022, and depositions of all expert witnesses by
November 5, 2022, which was the discovery end date. The court later moved
the deadline to complete written discovery to June 15, 2022. Cablevision
provided responses to plaintiff's written discovery requests on June 24, 2022;
the Executive House defendants provided plaintiffs with their responses on June
27, 2022. During a June 27, 2022 case management conference, the court gave
plaintiffs additional to time to serve their discovery-request responses.
On July 29, 2022, the Executive House defendants moved for summary
judgment. On August 12, 2022, Cablevision moved for summary judgment,
arguing no party had asserted a cognizable claim against it. On August 24, 2022,
plaintiffs moved for an order compelling defendants to provide more specific
answers to their interrogatories and requests for production of documents.
Plaintiffs' counsel had sent letters to counsel for the Executive House defendants
A-0860-22 11 and Cablevision's counsel on July 25, 2022, and August 1, 2022, respectively,
seeking supplemental discovery responses.1 During an August 2, 2022 case
management conference, the only outstanding discovery issue raised by
plaintiffs' counsel was his access to discovery exchanged between defendants.
He nevertheless asserted in certifications he submitted later that month in
opposition to defendants' summary-judgment motions that "there remains
significant outstanding discovery in this matter . . . ." Weeks after the August
2, 2022 conference and after defendants had moved for summary judgment,
plaintiffs issued deposition notices, scheduling the depositions after the court-
imposed deadline of September 3, 2022.
The court heard argument and on October 6, 2022, issued a verbal decision
and written orders granting defendants' motions and dismissing the claims
against the Executive House defendants with prejudice and the complaint as to
Cablevision without prejudice. The court rejected plaintiffs' argument that the
motions were premature, finding additional discovery would not enable a
1 In those letters, plaintiffs' counsel requested documents regarding an "accounting and analysis" of the "cost savings" obtained through the bulk-billing agreements, any communications between the Association and unit owners regarding the Agreement, the "Cable TV Survey" results, vote tallies of the Association’s approval of the Agreement, any communications between Cablevision and unit owners, and information on other buildings with bulk- billing agreements with Cablevision. A-0860-22 12 factfinder to resolve the dispute in plaintiffs' favor. The court granted
Cablevision's motion, finding there was "no cognizable cause of action" against
it and that no cause of action against Cablevision had been "pled or expressed ."
The court granted the Executive House defendants' motion, rejecting plaintiffs'
lack-of-authority arguments and finding that pursuant to paragraph 27 of the
Master Deed, plaintiffs' purchase of their units constituted their ratification of
the bulk-billing agreements. As for plaintiffs' breach-of-fiduciary-duty claim,
the court held it "ha[d] seen nothing in this case . . . to warrant trying the issue
as to whether this somehow is fraudulent, self-dealing, or unconscionable."
Having granted defendants' summary-judgment motions, the court denied
plaintiff's discovery motion in an order from which plaintiffs did not appeal.
Plaintiffs Eric Gerstmann, Janine Luppino, and Ronald Luppino appeal
from the summary-judgment orders. They argue material factual disputes exist,
summary judgment was premature, Cablevision is an indispensable party against
whom plaintiffs asserted a cognizable claim, the Executive House defendants
lacked authority to enter into the bulk-billing agreements pursuant to the
Governing Documents and statute, and the Board and its members breached their
fiduciary duties to plaintiffs. Having conducted our own review of the
A-0860-22 13 summary-judgment motions, we are unpersuaded by those arguments and
affirm.
II.
We review a grant of summary judgment de novo, using the same standard
that governed the trial court's decision. Samolyk v. Berthe, 251 N.J. 73, 78
(2022). Under that standard, summary judgment will be granted when "the
competent evidential materials submitted by the parties," viewed in the light
most favorable to the non-moving party, show that there are no "genuine issues
of material fact and . . . the moving party is entitled to summary judgment as a
matter of law." Grande v. Saint Clare's Health Sys., 230 N.J. 1, 23-24 (2017)
(quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). "An issue of fact is genuine
only if, considering the burden of persuasion at trial, the evidence submitted by
the parties on the motion, together with all legitimate inferences therefrom
favoring the non-moving party, would require submission of the issue to the trier
of fact." R. 4:46-2(c); see also Grande, 230 N.J. at 24. "We accord no special
deference to the trial court's legal conclusions." Birmingham v. Travelers N.J.
Ins. Co., 475 N.J. Super. 246, 255, (App. Div. 2023).
Like the trial court, we perceive no genuine issues of material fact that
would call for the denial of defendants' motions and conclude the Executive
A-0860-22 14 House defendants were authorized to enter into the bulk-billing arrangements at
issue in this case. "Under the Condominium Act, the association 'shall be
responsible for the administration and management of the condominium . . .
including but not limited to the conduct of all activities of common interest to
the unit owners.'" Port Liberte Homeowners Ass’n, Inc. v. Sordoni Constr. Co.,
393 N.J. Super. 492, 503 (App. Div. 2007) (quoting N.J.S.A. 46:8B-12); see also
Siller v. Hartz Mountain Assocs., 93 N.J. 370, 375 (1983) ("The Act . . . provides
that the condominium will be administered and managed by [its] association").
"Whether or not incorporated, the association shall be an entity which shall act
through its officers and may enter into contracts, bring suit and be sued." Port
Liberte, 393 N.J. Super. at 503 (quoting N.J.S.A. 46:8B-15(a)).
Under Article IV, Section 2 of the By-Laws, the Association's Board was
given "the powers and duties necessary for the administration of the affairs of
the Association and may do all such acts and things, except as by law or by the
Master Deed or by these By-Laws, may not be delegated to the Board . . . by
Unit Owners." (Emphasis added). We see nothing in the Governing Documents
or the Act that prevents the Executive House defendants from entering into the
Cablevision agreements.
A-0860-22 15 Article IV, Section 2, paragraph (b) of the By-Laws requires the Board to
"allocate and assess [Common Expenses] among the Unit Owners according to
and in the percentage of their respective ownership of Common Elements." The
Master Deed defines Common Expenses as "expenses of maintenance, repair,
replacement, administration and operation of the Common Elements." As
plaintiffs acknowledged in their pleadings, "[t]he subject matter of the services
provided pursuant to the Agreement are not Common Elements as defined in the
Governing Documents." We agree. Thus, the Board was not required to allocate
the cost of the cable-television services based on the unit owner's percentage of
ownership and was not prevented from entering into an agreement with charges
incurred on a per-unit basis. And that's what happens under the agreements at
issue. Cablevision bills for its services a monthly fee calculated "per residential
unit." That arrangement is consistent with the utilities provision set forth in
paragraph 15 of the Master Deed.
Pursuant to paragraph (b) of Section 2 of Article IV of the By-Laws, the
Board cannot "except in the case of an extreme emergency, without the consent
of the [majority of] Unit Owners . . . expend in excess of $5,000, on any item of
expense in any year in which it is not specified or if specified, over the amount
indicated for such item in the aforesaid budget for such year." Nothing in the
A-0860-22 16 record indicates the Board violated that provision. In discovery, the Executive
House defendants produced budgets issued during the term of the latest renewal
period; they contained specific entries for cable expenses. And in interrogatory
responses, defendants advised the Association "has not spent more than $5,000
in unbudgeted funds on the Cable charge . . . ." Plaintiffs have not demonstrated
the existence of a genuine issue of material fact as to defendants' compliance
with that provision of the By-Laws.
Paragraph 27 of the Master Deed provides that plaintiffs' purchase of their
units and acceptance of their deeds "constitute[d] the ratification, confirmation
and approval by [them] . . . of the propriety and legality of . . . any other
agreements authorized and permitted by the Act, this Master Deed and the By -
Laws." When plaintiffs purchased their units, in 2016 and 2021 respectively,
the Association already had entered into the Agreement and the Rider. Thus,
pursuant to paragraph 27, plaintiffs' purchase of their units constituted their
approval of the propriety and legality of those agreements. Plaintiffs contend
the Executive House defendants acted in a discriminatory manner in not
applying the cable charges to every unit owner. But the only unit owners who
are not required to pay the cable charges had purchased their units before the
Association entered into the Agreement and Rider. Consequently, the
A-0860-22 17 ratification provision set forth in paragraph 27 does not apply to those unit
owners.
Plaintiffs fault the Executive House defendants for purportedly not
complying with Article V, Section 9 of the By-Laws, which provides: "All
agreements, contracts, deeds, leases, checks and other instruments of the
Association shall be executed by any two officers of the Association or by such
other person or persons as may be designated by the Board of Directors." Only
defendant Costagliola, as Board president, signed the Agreement and Rider and
subsequent extensions. The Executive House defendants assert she could be the
sole signatory as a "person . . . designated by the Board." Whether she was a
"person . . . designated by the Board" or whether another board member should
have signed the agreements is of no import. It is undisputed the Board had
decided to enter into those agreements.
Plaintiffs contend the Executive House defendants violated N.J.S.A.
46:8B-15(d) by entering into the Agreement and Rider. That statutory provision
describes the procedure a condominium association must follow when
"acquir[ing] or enter[ing] into agreements whereby it acquires leaseholds,
memberships or other possessory or use interests in lands or facilities including,
but not limited to country clubs, golf courses, marinas and other recreational
A-0860-22 18 facilities." N.J.S.A. 46:8B-15(d). Under its plain terms, that statute does not
apply to the agreements at issue in this case. Rivera v. Union Cnty. Prosecutor's
Off., 250 N.J. 124, 141 (2022) (finding that when interpreting a statute, courts
look to its actual language and give words their generally accepted meaning ).
"[T]o establish a claim for breach of fiduciary duty, a plaintiff must show:
(1) the defendant had a duty to the plaintiff; (2) the duty was breached; (3) injury
to the plaintiff occurred as a result of the breach; and (4) the defendant caused
that injury." Namerow v. PediatriCare Assocs., LLC, 461 N.J. Super. 133, 146
(Ch. Div. 2018); see also F.G. v. MacDonell, 150 N.J. 550, 563-64 (1997).
Plaintiffs based their breach-of-fiduciary-duty cause of action on their claim the
Board and its members had violated the Governing Documents and New Jersey
law by entering into the Agreement and Rider. Having agreed with the trial
court that defendants did not violate the Governing Documents or applicable
law, we also agree that defendants were entitled to summary judgment on
plaintiffs' breach-of-fiduciary-duty cause of action.
Plaintiffs assert the court acted prematurely in granting defendants'
motions, contending discovery was not complete. A summary-judgment motion
"is not premature merely because discovery has not been completed . . . ."
Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015). "Purely legal
A-0860-22 19 questions, such as the interpretation of . . . contracts, are questions of law
particularly suited for summary judgment." Ibid.; see also United Sav. Bank v.
N.J. Dep't of Env't Prot., 360 N.J. Super. 520, 525 (App. Div. 2003) ("if the
summary judgment turns on a question of law, or if further factual development
is unnecessary in light of the issues presented, then summary judgment need not
be delayed").
To defeat a summary-judgment motion based on a claim of outstanding
discovery, a plaintiff must be "able to 'demonstrate with some degree of
particularity the likelihood that further discovery will supply the missing
elements of the cause of action.'" Badiali, 220 N.J. at 555 (quoting Wellington
v. Est. of Wellington, 359 N.J. Super. 484, 496 (App. Div. 2003)) (internal
quotation marks omitted); see also Minoia v. Kushner, 365 N.J. Super. 304, 307
(App. Div. 2004) ("While we are aware that ordinarily decision on a summary
judgment should be withheld until completion of discovery, nevertheless,
discovery need not be undertaken or completed if it will patently not change the
outcome."). In a case that turns largely on the interpretation of the Governing
Documents, plaintiffs have failed to meet that standard and have failed to
demonstrate the discovery they suggest would supply any missing elements of
their cause of action or alter the outcome.
A-0860-22 20 Plaintiffs include in their merits brief an argument based on the Cable
Television Act, N.J.S.A. 48:5A-1 to -64. Plaintiffs did not cite or rely on that
statute in their pleadings, and their counsel did not make any argument based on
it during oral argument before the trial court. Because that issue was not
"properly presented to the trial court," we decline to consider it. J.K. v. N.J.
State Parole Bd., 247 N.J. 120, 138 n.6 (2021) (quoting State v. Robinson, 200
N.J. 1, 20 (2009)); see also Alloco v. Ocean Beach & Bay Club, 456 N.J. Super.
124, 145 (App. Div. 2018) (applying "well-settled" principle that appellate court
will not consider an issue that was not raised before the trial court).
In granting Cablevision's motion, the trial court correctly concluded
plaintiffs had not pleaded a cause of action against Cablevision. As plaintiffs
stated in their pleadings, "Cablevision is a party [d]efendant by virtue of being
a stakeholder as a party to the Agreement and a provider of cable television
services to Unit Owners." Plaintiffs do not allege Cablevision engaged in any
wrongdoing. They do not claim Cablevision breached any contracts with or
duties owed to them or in any way caused the alleged breaches and violations of
the Executive House defendants. They do not seek any damages from
Cablevision. "A pleading should be dismissed if it states no basis for relief and
A-0860-22 21 discovery would not provide one." Rezem Fam. Assocs., LP v. Borough of
Millstone, 423 N.J. Super. 103, 113 (App. Div. 2011).
Instead, plaintiffs argue Cablevision should remain in the case as an
indispensable party. "Whether a party is indispensable is fact sensitive." Int'l
Brotherhood of Elec. Workers Local 400 v. Borough of Tinton Falls, 468 N.J.
Super. 214, 225 (App. Div. 2021). "[A] party is not truly indispensable unless
he has an interest inevitably involved in the subject matter before the court and
a judgment cannot justly be made between the litigants without either adjudging
or necessarily affecting the absentee's interests." Ibid. (quoting Toll Bros., Inc.
v. Twp. of W. Windsor, 334 N.J. Super. 77, 90-91 (App. Div. 2000)).
"[A]bsence of an indispensable party does not deprive the court of
jurisdiction to adjudicate the issues among the parties who were joined." Toll
Bros., 334 N.J. Super. at 91. And this court will not remand a case based on the
absence of an indispensable party when doing so would be "fruitless." Int'l
Brotherhood, 468 N.J. Super. at 226. The trial court found a claim by
Cablevision "would only arise if [the] Executive House [defendants] were to
lose" and granted Cablevision's motion when it granted the Executive House
defendants' motion. Under those circumstances, we perceive no error in the
A-0860-22 22 court's decision to grant Cablevision's motion and, accordingly, affirm the
court's order.
Affirmed.
A-0860-22 23