Kdn, Inc. v. Youry Antipin

• Court: New Jersey Superior Court Appellate Division
• Decided: December 10, 2025
• Docket: A-0204-24
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0204-24

KDN, INC. and NICHOLAS ANTIPIN, individually,

Plaintiffs-Appellants,

v.

YOURY ANTIPIN,

Defendant-Respondent. ________________________

Argued November 19, 2025 – Decided December 10, 2025

Before Judges Mayer, Paganelli and Vanek.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3682-21.

Kevin S. Englert argued the cause for appellants (The Englert Law Firm, LLC, attorneys; Kevin S. Englert, on the briefs).

Christian R. Oehm argued the cause for respondent (Lindgren, Lindgren, Oehm & You, LLP, attorneys; Christian R. Oehm, on the brief).

PER CURIAM Plaintiffs Nicholas Antipin (Nicholas) 1 and KDN, Inc. (KDN)

(collectively, plaintiffs) appeal from the following: a June 7, 2023 order

granting a motion by defendant Youry Antipin (Youry) to reopen discovery; a

July 7, 2023 order denying plaintiffs' motion for reconsideration of the June 7

order; a July 9, 2024 judgment entered in favor of Youry establishing the fair

market value of a summer rental property in Belmar, New Jersey (Property); and

a September 10, 2024 amended judgment. We affirm all orders on appeal.

We summarize the facts from the motion record and the bench trial.

Nicholas is KDN's chief executive officer and Youry's brother. In 1999,

Nicholas and Youry formed a partnership, KDN, for the purpose of owning and

renting the Property. Youry held a thirty-five percent interest in KDN. Nicholas

held the remaining interest in the partnership. KDN's partnership agreement

required the partner seeking to sell his interest to offer the shares to the other

partner at "fair market value."

Over time, the parties' relationship deteriorated. In 2020, Youry told

Nicholas he wished to sell his partnership interest to KDN. KDN made three

offers to buy Youry's share. However, Youry declined each offer. A year later,

1 Because the parties share the same last name, we refer to them by their first names. No disrespect is intended. A-0204-24 2 plaintiffs sued to dissolve the partnership and to compel Youry to sell his

partnership interest at fair market value.

The pretrial judge set a discovery end date of March 5, 2023, and a trial

date of June 12, 2023. About a month before trial, the parties exchanged witness

lists. Plaintiffs listed two expert real estate appraisers: Joseph Fisher and Robert

Gagliano. Youry listed one expert real estate appraiser: Todd G. LiPira.

On May 4, 2023, Youry's then-attorney filed a motion to reopen discovery

and adjourn the trial. The attorney certified that Youry filed an ethics complaint

against LiPira. Consequently, LiPira refused to testify at trial on Youry's behalf.

Youry's attorney sought an adjournment of the trial so his client could obtain a

new real estate appraiser.

On May 22, 2023, Assignment Judge Lisa P. Thornton heard argument on

Youry's motion. The judge engaged in an extensive colloquy with the parties

regarding the need to adjourn the scheduled trial so Youry could obtain a new

appraisal expert. At oral argument, Youry explained he filed an ethics complaint

because LiPira refused to answer questions about his appraisal calculations.

Although the judge acknowledged Youry's predicament was self-inflicted, she

granted the motion to reopen discovery. To level the playing field, Judge

A-0204-24 3 Thornton ordered Youry to reimburse plaintiffs for expenses associated with the

retention of a new real estate appraisal expert if plaintiffs so elected.

Unfortunately, Judge Thornton died four days later without having entered

the order granting Youry's motion. On June 3, 2023, the Presiding Judge of the

Civil Division in Monmouth County signed an order reopening discovery and

adjourning the trial.

Two weeks later, plaintiffs moved for reconsideration of the June 3 order.

They claimed discovery should not have been reopened because Youry filed an

ethics complaint against his own appraiser to delay the litigation. They further

stated Youry failed to disclose to the court that he also filed an ethics complaint

against some of plaintiffs' real estate appraisers.

The pretrial judge heard oral argument on plaintiffs' reconsideration

motion. In denying the motion, the judge found Judge Thornton did not abuse

her discretion. The judge explained that preventing Youry from retaining a new

real estate appraiser to testify at trial would disadvantage Youry and cause him

to suffer prejudice. To limit any potential prejudice to plaintiffs, the judge noted

Judge Thornton ordered Youry to compensate plaintiffs if they sought an

updated real estate appraisal. The judge concluded Judge Thornton properly

exercised her discretion and struck a fair balance between the parties' interests.

A-0204-24 4 In June 2024, Judge Andrea I. Marshall conducted a two-day bench trial

to determine the value of the Property for the buyout of Youry's interest in KDN.

The trial judge heard testimony from plaintiffs' witnesses: Nicholas, LiPira, and

Christopher Otteau, an expert real estate appraiser. Youry called Theodore

Lamicella as his expert real estate appraiser. Youry also testified on his own

behalf.

LiPira, who was Youry's original real estate appraisal expert, valued the

Property at $1,465,000 as of 2023 using both the sales comparison and the

income approaches. LiPira also relied on plaintiffs' estimates for the cost of

necessary repairs. Applying only the income approach, LiPira valued the

Property at $1,180,000.

Otteau valued the Property at $1,400,000 as of 2023. He calculated the

value of the Property based on its highest and best use as a rental property.

Otteau calculated the value based on the square footage of each unit. Further,

he considered the Property's income-generating potential limited to the summer

season due to the Property's location in a beach area.

In his direct testimony, Otteau, unprompted by plaintiffs' counsel,

criticized Lamicella's expert report. According to Otteau, Lamicella mistakenly

valued the Property on a per unit basis and assumed the Property would generate

A-0204-24 5 twelve months of rental income, which Otteau explained was "physically

impossible."

Otteau initially valued the Property at $1,920,000 but deducted $469,000

for necessary repairs. On cross-examination, Otteau conceded his cost estimates

for repairs came from plaintiffs and he did not verify the information.

During Lamicella's testimony, he disagreed with Otteau's valuation of the

Property. He agreed the highest and best use of the Property was as a rental

property. He assessed the value of the Property on a per unit basis. He also

calculated rental income on an annual, rather than a seasonal, basis. Further,

Lamicella deducted $143,000 for needed repairs.

Using the sales comparison approach, Lamicella valued the Property at

$2,500,000 in 2022 and 2023. Using the income approach, he valued the

Property at $2,890,000 as of 2022 and $3,033,000 as of 2023. Lamicella

reconciled the two approaches for valuation of the Property at $2,700,000 as of

2022 and $2,500,000 as of 2023.

Because Otteau criticized Youry's real estate appraiser's valuation during

his direct testimony, his attorney questioned Lamicella about Otteau's report.

Plaintiffs' attorney objected, arguing Lamicella did not provide a written rebuttal

report during discovery.

A-0204-24 6 Judge Marshall overruled the objection, finding Otteau opened the door

for Lamicella's direct testimony. Because the case proceeded as a bench trial,

the judge explained the information would be helpful to her given the

discrepancy in the experts' valuations and methodologies. Additionally, the

judge allowed plaintiffs to "bring back [Otteau] on rebuttal" to respond to

Lamicella's testimony.

Based on the trial testimony and evidence, Judge Marshall valued the

Property at $1,900,933 as of 2023. The judge found all three real estate appraisal

experts credible. However, the judge found "both plaintiffs' and defendant's

experts made incorrect determinations when calculating fair market value

utilizing the income approach." She determined Otteau's use of "square footage

. . . [wa]s not the appropriate or preferred criteria" for calculating fair market

value under the income approach because "[t]he evidence supports that

apartments rent and sell based upon the type of unit . . . as opposed to square

footage."

Moreover, while Lamicella "correctly utilized the per unit criteria," the

judge explained his "use of annual as opposed to summer rental information to

calculate fair market value was not the appropriate measure, given the type of

units, historical nature of . . . the renters and rentals for the subject [P]roperty,

A-0204-24 7 the specific characteristics of the [P]roperty, . . . and the nature of rentals in

Belmar generally."

Further, the judge concluded "the actual rental/income information

provided by plaintiff[s wa]s insufficient to utilize when calculating the fair

market value of the [P]roperty, as the [c]ourt f[ound] plaintiff[s] ha[ve] not

utilized the [P]roperty to its potential." Without actual rental information, the

judge applied comparable seasonal rentals provided by Youry's expert to

determine the Property's rental income.

Based on her calculation of the Property's fair market value, the judge

concluded Youry's shares in KDN were worth $648,102 and entered judgment

in that amount. About a month later, the judge amended the judgment to award

an additional $4,000 to plaintiffs for the cost of their new expert report.

On appeal, plaintiffs argue Judge Thornton abused her discretion in

reopening discovery and adjourning the trial. Further, they contend Judge

Marshall abused her discretion by allowing Lamicella, during his direct

testimony, to rebut Otteau's report absent the submission of a written rebuttal

report. We reject these arguments.

We first address plaintiffs' argument that Judge Thornton abused her

discretion in reopening discovery. "[A]ppellate courts . . . defer to a trial judge's

A-0204-24 8 discovery rulings absent an abuse of discretion or a judge's misunderstanding or

misapplication of the law." Cap. Health Sys., Inc. v. Horizon Healthcare Servs.,

Inc., 230 N.J. 73, 79-80 (2017) (citing Pomerantz Paper Corp. v. New Cmty.

Corp., 207 N.J. 344, 371 (2011)).

Plaintiffs argue Judge Thornton erred in reopening discovery because she

failed to state her reasons on the record or read plaintiffs' briefs in opposition to

the motion to reopen discovery. They further assert Judge Thornton mistakenly

extended discovery absent a finding of exceptional circumstances. 2

"Meaningful appellate review is inhibited unless the judge sets forth the

reasons for his or her opinion." Salch v. Salch, 240 N.J. Super. 441, 443 (App.

Div. 1990). "In the absence of reasons, we are left to conjecture as to what the

judge may have had in mind." Ibid.

Contrary to plaintiffs' argument, Judge Thornton detailed her reasons for

reopening discovery on the record during an extensive colloquy with counsel.

Additionally, Youry was sworn on the motion return date and the judge

questioned him regarding his reasons for filing an ethics complaint against his

expert.

2 Plaintiffs failed to brief the denial of their motion for reconsideration. "An issue not briefed on appeal is deemed waived." Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011). A-0204-24 9 After hearing from counsel and Youry, the judge acknowledged Youry's

predicament was "self-inflicted." However, she found depriving Youry of an

expert would be too drastic because the Property's fair market value was the

central issue to be resolved at trial. To level the playing field after reopening

discovery, Judge Thornton required Youry "pay any additional expert fees of the

plaintiff[s] and the cost of the motion."

Having reviewed the record, Judge Thornton's colloquy with counsel on

the record on May 22, 2023 fully articulated the reasons for reopening discovery.

Our review of Judge Thornton's decision is not impacted by the entry of the

order from a different judge a few days after Judge Thornton's unexpected death.

Plaintiffs also claim Judge Thornton failed to consider their motion papers

in opposition to the motion to reopen discovery. From our review of the

transcript of the motion argument, plaintiffs vigorously argued why discovery

should not be reopened. Plaintiffs failed to identify any of their arguments that

Judge Thornton failed to consider.

We also reject plaintiffs' argument that Judge Thornton abused her

discretion because there were no exceptional circumstances warranting the

reopening of discovery. "No extension of the discovery period may be permitted

after an arbitration or trial date is fixed, unless exceptional circumstances are

A-0204-24 10 shown." R. 4:24-1(c). To prove exceptional circumstances warranting an

extension of discovery after assignment of a trial date, a party must show:

(1) why discovery has not been completed within time and counsel's diligence in pursuing discovery during that time; (2) the additional discovery or disclosure sought is essential; (3) an explanation for counsel's failure to request an extension of the time for discovery within the original time period; and (4) the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.

[Hollywood Café Diner, Inc. v. Jaffee, 473 N.J. Super. 210, 217 (App. Div. 2022) (emphasis omitted) (quoting Rivers v. LSC P'ship, 378 N.J. Super. 68, 79 (App. Div. 2005)).]

"A precise explanation that details the cause of delay and what actions were

taken during the elapsed time is a necessary part of proving . . . exceptional

circumstances as required by Rule 4:24-1(c) to extend discovery after a trial or

arbitration date is set." Bender v. Adelson, 187 N.J. 411, 429 (2006).

Here, Judge Thornton found testimony proffered by real estate appraisal

experts was essential to determining the Property's fair market value. Youry

initially retained LiPira as his real estate expert. However, issues between

Youry and LiPira arose after the close of discovery.

Based on Judge Thornton's examination of Youry during argument on the

motion to reopen discovery, it was evident that the circumstances leading to the

A-0204-24 11 deterioration of the relationship were beyond Youry's control. Youry told the

judge he filed an ethics complaint against LiPira due to a breakdown in

communications because LiPira refused to answer Youry's questions about the

appraisal. As a result, Youry became concerned regarding LiPira's ability to

testify credibly at trial.

Having reviewed the record, Judge Thornton did not abuse her discretion

in reopening discovery based on exceptional circumstances. The judge balanced

the equities and leveled the playing field by requiring Youry pay plaintiffs' costs

associated with obtaining a new expert real estate appraisal report as a result of

reopening discovery. Plaintiffs also called LiPira as one of their witnesses at

trial, allowing LiPira to testify in support of his valuation of the Property. Under

the circumstances, Judge Thornton did not abuse her discretion in reopening

discovery.

We next consider plaintiffs' argument that Judge Marshall abused her

discretion in allowing Lamicella to testify in response to Otteau's report without

submitting a written rebuttal report. We review "a trial judge's evidentiary

rulings with substantial deference and will not overturn such a ruling unless it

constituted a clear abuse of discretion." Hrymoc v. Ethicon, Inc., 254 N.J. 446,

463 (2023). Abuse of discretion "arises when a decision is 'made without a

A-0204-24 12 rational explanation, inexplicably departed from established policies, or rested

on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571

(2002) (quoting Achacoso-Sanchez v. Immigr. & Naturalization Serv., 779 F.2d

1260, 1265 (7th Cir. 1985)). "A trial court's interpretation of the law and the

legal consequences that flow from established facts are not entitled to any

special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995).

"A trial judge is responsible for the control and management of the trial

and is vested with wide discretion to perform this function." Horne v. Edwards,

477 N.J. Super. 302, 324 (App. Div. 2023) (quoting State v. T.E., 342 N.J. Super.

14, 29 (App. Div. 2001)). "[T]he decision to admit or exclude evidence is one

firmly entrusted to the trial court's discretion." Est. of Hanges v. Metro. Prop.

& Cas. Ins. Co., 202 N.J. 369, 383-84 (2010) (citing Green v. N.J. Mfrs. Ins.

Co., 160 N.J. 480, 492 (1999)). A "trial court has a wide range of discretion

regarding the admissibility of proffered rebuttal evidence." Weiss v. Goldfarb,

295 N.J. Super. 212, 225 (App. Div. 1996). A trial judge also "has the discretion

to preclude expert testimony on a subject not covered in the written reports

furnished in discovery." Ratner v. Gen. Motors Corp., 241 N.J. Super. 197, 202

(App. Div. 1990). The factors "strongly urg[ing]" a judge to not exclude such

A-0204-24 13 testimony are: "(1) the absence of a design to mislead, (2) [the] absence of the

element of surprise if the evidence is admitted, and (3) [the] absence of prejudice

which would result from the admission of the evidence." Westphal v. Guarino,

163 N.J. Super. 139, 146 (App. Div. 1978) (citing Brown v. Mortimer, 100 N.J.

Super. 395, 401-02 (App. Div. 1968)).

Judge Marshall did not abuse her discretion by allowing Lamicella to

testify on direct examination regarding Otteau's report. Based on the experts'

conflicting valuations of the Property and differing methodologies in arriving at

their valuations, Lamicella's testimony aided Judge Marshall in determining the

Property's value. Moreover, Youry's attorney did not engage in unfair tactics by

questioning Lamicella about Otteau's conclusions. Instead, Otteau opened the

door for Lamicella's rebuttal testimony because Otteau, without being prompted

by plaintiffs' attorney, criticized Lamicella's report. To the extent plaintiff's

counsel was surprised by Lamicella's testimony, Judge Marshall allowed

plaintiffs to "bring back [Otteau] on rebuttal." However, plaintiffs did not do

so.

We are satisfied there was no prejudice to plaintiffs resulting from the

judge's admission of Lamicella's rebuttal testimony. Because this was a bench

trial, "we give deference to the trial court that heard the witnesses, sifted the

A-0204-24 14 competing evidence, and made reasoned conclusions." Griepenburg v. Twp. of

Ocean, 220 N.J. 239, 254 (2015). "[W]e presume that the fact-finder appreciates

the potential weakness of [the] proofs, and takes that into account in weighing

the evidence." N.J. Div. of Child Prot. & Permanency v. J.D., 447 N.J. Super.

337, 349 (App. Div. 2016). Where "there is sufficient credible evidence,

independent of improper evidence, that supports the findings made by a trial

court, the improper use of some evidence does not require a reversal." Reinhart

v. E.I. Dupont De Nemours, 147 N.J. 156, 166 (1996); see also In re Civ.

Commitment of J.H.M., 367 N.J. Super. 599, 613 (App. Div. 2003) (holding the

"absence of a jury significantly reduces the risk" erroneously admitted evidence

will produce an unjust result).

Judge Marshall painstakingly considered and evaluated the experts'

reports. She found methodological flaws in each of those reports. Judge

Marshall rendered detailed reasons in support of her determining the Property's

fair market value based on the record as a whole. Nothing in the record

demonstrates Lamicella's rebuttal testimony caused an unjust result. Thus,

Judge Marshall did not abuse her discretion in allowing the testimony.

Affirmed.

A-0204-24 15