NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0129-23
SECOND INNING 1, LLC,
Plaintiff-Appellant/Cross- Respondent,
v.
RELAP LLC, ESTATE OF MARCEL Z. ANTAKI, ESTATE OF LILIANE ANTAKI, ALAN ANTAKI, ROGER ANTAKI, and NICHOLAS ANTAKI,
Defendants-Respondents/ Cross-Appellants.
Argued November 10, 2025 – Decided December 4, 2025
Before Judges Sabatino, Walcott-Henderson and Bergman.
On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C- 000094-18. Andrew J. Kyreakakis argued the cause for appellant/cross-respondent (Weiner Law Group LLP, attorneys; Andrew J. Kyreakakis, on the briefs).
Matthew P. Dolan argued the cause for respondents/cross-appellants RELAP LLC, Estate of Liliane Antaki, Alan Antaki, Roger Antaki, and Nicholas Antaki (Meyner and Landis LLP, attorneys; Matthew P. Dolan, on the briefs).
Charles M. Kennedy argued the cause for respondent/cross-appellant Estate of Marcel Z. Antaki (Baldassare & Mara, LLC, attorneys; Michael Baldassare, Jennifer Mara, and Charles M. Kennedy, on the briefs).
PER CURIAM
This commercial lease dispute was tried intermittently over three months
in 2022 as a non-jury case in the Chancery Division. The parties to that dispute
are the commercial tenant, plaintiff Second Inning 1, LLC ("Second Inning"),
an adult day-care center, and the landlord, defendant RELAP, LLC ("RELAP"),
as well as several codefendant individuals associated with RELAP.1
1 The codefendants are Alan Antaki, Roger Antaki, Nicholas Antaki, the Estate of Marcel Z. Antaki, and the Estate of Liliane Antaki. Because these related individuals share the same surname, we will refer to them by their first names, intending no disrespect.
2 A-0129-23 Second Inning sued defendants for breach of contract along with other
legal theories. Defendants contested their liability and moved for summary
judgment, which a pretrial judge 2 denied except as to defendant Nicholas.
At the conclusion of the lengthy bench trial, the trial judge issued a written
opinion rejecting Second Inning's claims. The judge thereafter awarded partial
fee-shifting sanctions in favor of two of the individual co-defendants, Nicholas
and Liliane's estate, pursuant to the frivolous litigation statute, N.J.S.A. 2A:15-
59.1.
Second Inning appeals the trial court's rejection of its claims on the merits
and the fee-shifting sanctions. Defendants, meanwhile, cross-appeal the pretrial
judge's denial of summary judgment to them.
For the reasons that follow, we affirm the trial judge's disposition of the
merits, substantially for the sound reasons expressed in its written opinion dated
November 15, 2022. However, we reverse the award of sanctions.
Lastly, we reject the cross-appeal because, given the posture of the case
on summary judgment as presented to the pretrial judge, there were sufficient
legal issues and genuine material questions of fact to justify a trial.
2 A different judge tried the case, who we will refer to as the trial judge. 3 A-0129-23 I.
The parties are undoubtedly very familiar with the factual background and
procedural history of this protracted litigation, and we need not elaborate upon
it here. The following summary of key events and the most relevant lease
provisions will suffice.
In 2008 Second Inning entered into a lease for space in RELAP's
commercial property in Whippany. There were three amendments to the lease
over the relevant years in 2010, 2013 and 2016 to extend the lease term and
accommodate an expansion of plaintiff's "adult day care" business. Two other
tenants occupied the building.
This litigation arose fundamentally from a dispute over parking spaces
that Second Inning could use on the premises. According to the initial lease,
Second Inning was responsible for obtaining the necessary land use approvals
for parking spaces on site. Overnight parking was necessary for Second Inning's
business, as it utilized its own vehicles to transport elderly residents to and from
their homes, medical appointments, shopping, and other activities.
Second Inning initially needed 14 parking spaces, which was increased to
16 at the time of the second lease amendment. In the third lease amendment,
Second Inning specified it needed 44 spaces.
4 A-0129-23 Several key provisions in the first lease were highlighted by the trial judge
and are pivotal to the analysis. The lease3 stated in part:
The Tenant shall diligently pursue, at its sole cost and expense, all necessary approvals and permits from the Township of Whippany, New Jersey including, but not limited to any necessary Whippany zoning approvals, construction permits, and approval of the New Jersey State Division of Health and Human Services, and from any other governmental instrumentality, board or bureau having jurisdiction thereof necessary for the Tenant to utilize the Demised Premises for the Permitted Use. In the event that the Tenant fails to obtain such approval and permits aforesaid within 90 days of the date of this Lease, the Landlord may, in its sole discretion, declare this Lease null and void.
[(Emphasis added).]
Section 1 of the first lease also provided in part:
Tenant acknowledges that it is familiar with the Demised Premises and hereby agrees to accept the Demised Premises in its present condition, AS IS, including, but not limited to, the major systems being in good working order and the structure of the Demised Premises being in good and sound conditions, except for work to be performed by Tenant, at Tenant's sole cost and expense, in accordance with Exhibit "B" attached hereto and made a part hereof (hereinafter "Tenant's Work Letter"). . . . Tenant agrees to be solely responsible for obtaining all necessary governmental approvals and all costs related thereto in connection with Tenant's Work Letter. . . . Tenant further acknowledges that neither Landlord nor anyone on Landlord's behalf has made any representations or
3 For context, all references in the leases to "Tenant" refer to plaintiff Second Inning and all references to "the Landlord" refer to defendant RELAP. 5 A-0129-23 warranties with respect to the condition of the Demised Premises.
Exhibit B to the first lease, entitled "Tenant's Work Letter," outlined
various requirements to ensure that Second Inning's contractors carried
insurance to cover any claims arising from the anticipated construction. The
lease included a non-liability provision in section 7(a), which provided in
relevant part that "[n]either the Landlord nor any partner of the Landlord shall
be under any personal liability to the Tenant with respect to any provision of
this Lease."
Moreover, in section 37, the first lease included a non-waiver provision,
which stated:
The various rights, remedies, options and elections of the Landlord, expressed herein, are cumulative, the failure of the Landlord to enforce strict performance by the Tenant of the conditions and covenants of this Lease or to exercise any election or option, or to resort or have recourse to any remedy herein conferred or the acceptance by the Landlord of any installment of Rent and Operating Charges after any breach by the Tenant, in any one or more instances, shall not be construed or deemed to be a waiver or a relinquishment for the future by the Landlord of any such conditions and covenants, options, elections or remedies, but the same shall continue in full force and effect.
6 A-0129-23 Of particular importance to the parties' ensuing course of conduct and
interactions, section 41 of the first lease contained "entire agreement" language
(sometimes known as an "integration clause"), which stated in pertinent part:
This Lease contains the entire agreement between the parties. No representative, agent or employee of the Landlord has been authorized to make any representations or promises with reference to the within letting or to vary, alter or modify the terms thereof. No additions, changes or modifications, renewals or extensions hereof shall be binding unless reduced to writing and signed by the Landlord and the Tenant.
The first lease also provided for Second Inning's use of 14 parking spaces,
as specified in the building plan included in Exhibit A of the lease addendum.
Before signing the first lease, Second Inning submitted an application to the
Township of Hanover Site Plan Exemption Committee to use the premises as an
adult day care center. Evidently that application was approved.
On August 1, 2010, the parties entered the first lease amendment, which
extended the lease an additional five years. Notably the amendment provided
that, "[e]xcept as expressly provided herein, all other terms, conditions,
covenants, conditions and agreements as set forth in the Lease remain
unchanged and in full force and effect." Marcel signed as "Managing Member"
on behalf of RELAP.
7 A-0129-23 The parties entered a second lease amendment on May 23, 2013,
increasing the leased premises from 6,150 square feet to 7,200 square feet, and
Second Inning's common area maintenance ("CAM") share to 32%. The lease
amendment also increased the parking spaces allotted to Second Inning from 14
to 16. However, the additional two parking spaces were "granted on a temporary
basis" and subject to be "withdrawn by the Landlord at his sole discretion and
without any justification required for such action."
As with the first lease amendment, the second lease amendment stated that
all terms of the initial lease remained in effect unless they were "explicitly
amended or cancelled" by the amendment. Marcel signed as "Managing
Member" once again.
On July 1, 2016, the parties entered into a third lease amendment,
increasing the leased premises an additional 3,819 square feet to 11,019 square
feet. Through this amendment, Second Inning intended to expand its operations
into RELAP's vacant warehouse space to accommodate its growing clientele. In
particular, the lease amendment stated that "Sixteen (16) Parking Stalls will be
assigned to present expansion . . . in addition to the Fourteen (14) stalls . . .
already assigned to" Second Inning. Exhibit B to the amendment was a color-
coded diagram of the parking configuration depicting Second Inning's 14
8 A-0129-23 existing assigned parking spaces shown in orange and the 16 additional parking
spaces RELAP intended to assign Second Inning shown in blue.
The second paragraph of this lease amendment contained the following
recital: "Whereas Tenant desires to start applying for the necessary permits to
expand his operation from various Municipal and Governmental Departments
and Authorities, with the hope that it will be able to successfully obtain same by
or before February 1 st, 2017 . . . " (Emphasis added).
Additionally, Section 3 of the amendment provided that "Tenant will
perform ALL JOBS pertaining to the modifications of its premises, and those
jobs outside of the premises that are caused by such modifications, in particular,
those described in EXHIBIT 'C', at its sole expense, and to the satisfaction of
the Landlord" (emphasis in original). Exhibit C, entitled "Works to Be Done by
Tenant at Tenant's Sole Expense," included all services related to the removal
of overhead doors and dock work (modifications pertaining to the space's former
use as warehouse space), installation of fire walls, and modification, repair, or
replacement of the security, electrical, sprinkler, and HVAC systems
(capitalization changed).
As with the first and second lease amendments, the third lease amendment
stipulated in paragraph one that all conditions of the prior lease amendments
9 A-0129-23 were valid unless "explicitly amended or cancelled." Marcel signed as
"Manager" on RELAP's behalf once more.4
Although the municipal land use board approved the initial 14 and then
16 spaces needed by Second Inning, it rejected the request for 44 more spaces
in the third application. The third application was filed by Marcel on behalf of
RELAP, not Second Inning., and stated that overnight storage of vehicles would
not be permitted, despite Second Inning's operational need for overnight
parking.
According to plaintiff, Marcel represented to Second Inning that the land
use board had approved the plan with the additional 44 parking spaces before
the third lease amendment was signed. However, through Open Public Records
Act requests, Second Inning eventually learned that representation was not true.
RELAP terminated the lease because the extra parking spaces had not
been authorized, which it claimed violated Second Inning's obligations under
the lease to obtain all necessary permits. That prompted Second Inning to file
4 The parties later entered into a fourth lease amendment, which is not pertinent to our analysis, on July 28, 2016. That amendment affected only the "Schedule of Payments" governing the rent and CAM charges. The fourth lease amendment was to run from August 1, 2016 to July 31, 2025. As we will recount, Second Inning's occupancy did not continue that long.
10 A-0129-23 suit against RELAP and its owners in the Chancery Division, asserting various
contract and tort claims.
The pretrial judge granted Second Inning a preliminary injunction in
October 2018 that prevented defendants from dispossessing Second Inning, and
imposed other preliminary measures. The pretrial judge generally denied
defendants' motions for summary judgment, except, as we have already noted,
to individual co-defendant Nicholas.
As we mentioned above, the pretrial judge perceived genuine issues of
material fact existed regarding the parties' obligations under the third lease
amendment, particularly concerning who was responsible for obtaining the site
plan or other land use approvals required to ensure that Second Inning could
continue to operate its adult day care center with adequate parking.
During the ensuing trial in 2022, the trial judge dismissed Second Inning's
claims and granted defendants' motions for involuntary dismissal of those claims
on various grounds. In his detailed post-trial written opinion, the trial judge
explained why he dismissed all remaining claims against RELAP and its
individual owners.
Thereafter, in 2023, the trial judge awarded frivolous litigation sanctions
of $36,393.95 and $20,159.06, respectively, to Nicholas and the estate of
Liliane. The judge determined that Second Inning had pursued litigation in bad
11 A-0129-23 faith by filing suit against those two defendants without alleging facts to support
a viable claim against either of them.
On appeal, Second Inning argues the trial court erred in entering judgment
in favor of defendants, and thus the judgment should be reversed and damages
awarded for the return of its rents and lost net income. Second Inning also
challenges the trial court's awards of sanctions for filing and pursuing frivolous
claims.
In two separate cross-appeals—one by Marcel5 and the other by RELAP
and the rest of the individual defendants—defendants assert that the individual
defendants should have prevailed earlier, on summary judgment, because
Second Inning had inadequate grounds to establish that those individuals should
have been personally liable for any of the tort claims it had raised against
RELAP.
II.
Our appellate review of this nonjury commercial case is guided by well-
established principles.
In general, "[f]inal determinations made by the trial court sitting in a non-
jury case are subject to a limited and well-established scope of review . . . ."
5 We note that Marcel passed away during the pendency of this appeal, and his estate has been substituted into the caption. 12 A-0129-23 Seidman v. Clifton Sav. Bank, 205 N.J. 150, 169 (2011). After a non-jury trial,
an appellate court "review[s] the trial court's factual findings under a deferential
standard: those findings must be upheld if they are based on credible evidence
in the record." Motorworld, Inc. v. Benkendorf, 228 N.J. 311, 329 (2017) (citing
D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)).
"Reviewing appellate courts should not disturb the factual findings . . . of
the trial judge unless convinced those findings . . . were so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice." Griepenburg v. Twp. of
Ocean, 220 N.J. 239, 254 (2015) (citation and internal quotation marks omitted);
see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484
(1974). The court's findings of fact are "binding on appeal when supported by
adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-
12 (1998); see also Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397
(2009).
That said, to the extent that the trial court interpreted the law and the legal
consequences that flow from established facts, we review its conclusions de
novo. Motorworld, Inc. 228 N.J. at 329 (citing D'Agostino, 216 N.J. at 182;
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995)).
13 A-0129-23 Procedurally, the trial judge dismissed Second Inning's claims pursuant to
Rule 4:37-2(b), which allows a defendant to move for the dismissal of an action
or claim after a plaintiff has rested its case. The rule provides that "such motion
shall be denied if the evidence, together with the legitimate inferences
therefrom, could sustain a judgment in [the] plaintiff's favor." Ibid. A motion
for involuntary dismissal is based "on the ground that upon the facts and upon
the law the plaintiff has shown no right to relief." ADS Assocs. Grp. v. Oritani
Sav. Bank, 219 N.J. 496, 510 (2014) (citing R. 4:37-2(b)). Therefore, "if,
accepting as true all the evidence which supports the position of the party
defending against the motion and according him the benefit of all inferences
which can reasonably and legitimately be deduced therefrom, reasonable minds
could differ, the motion must be denied." Prager v. Joyce Honda, Inc., 447 N.J.
Super. 124, 134 (App. Div. 2016) (quoting Verdicchio v. Ricca, 179 N.J. 1, 30
(2004)).
On the other hand, a dismissal motion made under Rule 4:37-2(b) "should
be granted where no rational juror could conclude that the plaintiff marshaled
sufficient evidence to satisfy each prima facie element of a cause of action."
Prager, 447 N.J. Super. at 134 (quoting Godfrey v. Princeton Theological
Seminary, 196 N.J. 178, 197 (2008)). This court will apply the same standard
as the trial court when reviewing the trial court's determination on a Rule 4:37-
14 A-0129-23 2(b) motion. Prager, 447 N.J. Super. at 134 (citing Smith v. Millville Rescue
Squad, 225 N.J. 373, 397 (2016)).
A.
The substantive law applicable to Second Inning's contract-based
allegations is well-settled. A breach of contract claim requires that "a plaintiff
. . . provide proof of 'a valid contract between the parties, the opposing party's
failure to perform a defined obligation under the contract, and a breach causing
the claimant to sustain[] damages.'" Nelson v. Elizabeth Bd. of Educ., 466 N.J.
Super. 325, 342 (App. Div. 2021) (alteration in original) (quoting Enviro
Finance Grp. v. Env't Barrier Co., 440 N.J. Super. 325, 345 (App. Div. 2015)).
Second Inning further alleges defendants breached a covenant of good
faith and fair dealing. Generally speaking, under New Jersey law, "[a] covenant
of good faith and fair dealing is implied in every contract." Wilson v. Amerada
Hess Corp., 168 N.J. 236, 244 (2001) (citing Sons of Thunder, Inc. v. Borden,
Inc., 148 N.J. 396, 420 (1997)). It requires that "neither party . . . do anything
which will have the effect of destroying or injuring the right of the other party
to receive the fruits of the contract." Sons of Thunder, 148 N.J. at 420 (citing
Palisades Props., Inc. v. Brunetti, 44 N.J. 117, 130 (1965)). However, the
implied covenant "cannot override an express term in a contract." Wade v.
Kessler Inst., 172 N.J. 327, 341 (2002) (quoting Wilson, 168 N.J. at 244).
15 A-0129-23 It is also well-settled that a court will enforce a contract "based on the
intent of the parties, the express terms of the contract, surrounding
circumstances and the underlying purpose of the contract." Manahawkin
Convalescent v. O'Neill, 217 N.J. 99, 118 (2014) (quoting Caruso v.
Ravenswood Devs., Inc., 337 N.J. Super. 499, 506 (App. Div. 2001)). Where
there are no significant "factual disputes, 'the interpretation of a contract is
subject to de novo review by an appellate court.'" In re Cnty. of Atlantic, 230
N.J. 237, 255 (2017)(quoting Kieffer v. Best Buy, 205 N.J. 213, 222-23 (2011)).
Here, the trial judge dismissed Second Inning's breach of contract claim
in Count One, specifically finding that "the duty to apply for site plan approval
was clearly [the obligation of Second Inning] pursuant to the initial lease which
was not explicitly altered by subsequent leases or actions of the defendant." The
judge, likewise, dismissed Count Two of Second Inning's complaint, finding that
"the implied covenant of good faith and fair dealing cannot override an express
term in a contract." The court reiterated that it was Second Inning's
responsibility to obtain site plan approval for parking, as established in the
initial lease.
We affirm the trial judge's sound analysis, which is well-supported by the
record, the lease documents, and the applicable law. The initial agreement was
very clear in imposing on Second Inning the responsibility to "diligently pursue,
16 A-0129-23 at its sole cost and expense, all necessary approvals and permits from the
Township of Whippany, New Jersey including, but not limited to any necessary
Whippany zoning approvals, construction permits, and approval of the New
Jersey State Division of Health and Human Services, and from any other
governmental instrumentality, board or bureau . . . [.]" That obligation could
hardly be made more explicit.
The trial judge sensibly recognized that, as the landlord of the premises,
RELAP's support was likely needed to obtain the needed land use approvals and
permits. Until the time of the third lease amendment, that cooperation evidently
was provided.
The third lease amendment posed a more nuanced question of obligation
because of Marcel's conduct in submitting the application for increased parking
spaces to the land use board. But the trial judge reasonably construed that
conduct as insufficient to shift the ultimate contractual obligation to obtain the
approvals and permits from Second Inning to RELAP. The lease is quite clear
that "no modifications" of it would be binding "unless reduced to writing and
signed by the Landlord and the Tenant." No such mutually signed writing exists.
Moreover, the no-waiver provision of the lease disallows the court from
deeming Marcel's actions a relinquishment of the landlord's rights. The risks of
municipal rejection remained with the tenant.
17 A-0129-23 To be sure, the trial court did not condone Marcel's unilateral actions in
filing an application with the township that provided for no overnight parking,
and in mispresenting to Second Inning that the extra parking had been approved
when, in fact, it had not. Once his actions came to light, however, Second Inning
did not file a submission with the land use board, or take any other steps to have
the board's denial reconsidered. By that point, the parties' relationship had
fractured and Second Inning launched the present litigation. However, none of
that changed the clear terms of the contract.
We reject Second Inning's arguments that the "work list" exhibit nullified
by omission the tenant's permit-approval-obtaining responsibility. Nor did the
recital at the beginning of the third lease amendment, which repeated the
"Tenant[s] desire[] to start applying for the necessary permits . . .[.]"
In sum, there was no proven breach of contract here. Moreover, there also
was no proven breach of the implied covenant of good faith and fair dealing
because the leases explicitly specified in multiple places that Second Inning
assumed the obligation to apply for and obtain the needed permits. The trial
judge reasoned that the implied covenant cannot override a contrary contractual
provision. Wade, 172 N.J. at 341.
18 A-0129-23 B.
We further discern no reason to set aside the trial judge's dismissal of
Second Inning's claims of fraud, fraud in the inducement, and negligent
misrepresentation. The evidence supports the judge's finding that, despite
Marcel's misrepresentation that the township had approved the extra parking
spaces, Second Inning did not prove it had reasonably relied on that assertion.
Such proven reliance is needed to sustain a claim of either intentional fraud or
negligent misrepresentation. Gennari v. Weichert Co. Realtors, 148 N.J. 582,
610 (1997) (as to intentional fraud); Carroll v. Cellco P'ship, 313 N.J. Super.
488, 502 (App. Div. 1998) (as to negligent misrepresentation).
C.
Equally without merit are Second Inning's claims of conversion and unjust
enrichment. As for conversion, the trial judge reasonably dismissed that claim
because there was no evidence that the individual defendants converted
anything. The judge duly noted that Second Inning paid the rent monies to
RELAP pursuant to the lease, and thus whatever damages plaintiff sought here
were "incorporated into the breach of contract claim." Second Inning was
obligated to pay rent under the lease, and any benefit that it did not get from
paying the rent was encompassed within the breach of contract claim. Second
Inning failed to prove that its landlord exercised improper "dominion or control"
19 A-0129-23 over its property or funds. Bondi v. Citigroup., Inc., 423 N.J. Super. 377, 431
(App. Div. 2011) (delineating the elements of conversion). This was
fundamentally a business dispute between a landlord and a tenant, not a theft.
Nor were the elements of unjust enrichment proven here, essentially for
the same reasons that Second Inning's contractual claims fall short. Because the
lease terms plainly imposed on Second Inning the obligation to obtain the
necessary municipal approvals, the rents paid to RELAP were not unjustly
received benefits. VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554 (1994)
(delineating the elements of unjust enrichment).
D.
We have considered Second Inning's remaining arguments for recovery,
including but not limited to alleged personal liability of individual codefendants
(contrary to the express terms of the leases); tortious interference with business
relations, and unclean hands. We have also considered Second Inning's
contentions that the trial judge should have awarded it damages. Those
arguments, and any others we have not addressed expressly, lack sufficient merit
to warrant discussion. R. 2:11-3(e)(1)(E).
20 A-0129-23 E.
There is, however, one aspect of the trial court's rulings that warrants
correction: the award of frivolous litigation sanctions to Nicholas and Liliane's
estate.
The applicable statute and court rule recite a familiar standard: A
complaint is frivolous when it "was commenced, used or continued in bad faith,
solely for the purpose of harassment, delay or malicious injury;" or "[t]he
nonprevailing party knew, or should have known, that the complaint . . . was
without any reasonable basis in law or equity and could not be supported by a
good faith argument for an extension, modification or reversal of existing law."
N.J.S.A. 2A:15-59.1(b)(1)-(2); see also In re Est. of Ehrlich, 427 N.J. Super. 64,
77 (App. Div. 2012). Under Rule 1:4-8, a court may impose sanctions, "where
an attorney or [self-represented litigant] filed a pleading or a motion with an
'improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation.'" Bove v. AkPharma Inc., 460 N.J. Super. 123,
148 (App. Div. 2019) (citing Rule 1:4-8).
A claim is considered frivolous only in very limited circumstances: where
"no rational argument can be advanced in its support, or it is not supported by
any credible evidence, or it is completely untenable." Est. of Ehrlich, 427 N.J.
21 A-0129-23 Super. at 77 (quoting First Atl. Fed. Credit Union v. Perez, 391 N.J. Super. 419,
432 (App. Div. 2007)).
Here, the pretrial judge essentially performed a gatekeeping function that
weighs against the alleged frivolity of the lawsuit. That judge, appropriately
viewing the then-existing record in a light most favorable to plaintiff as the non-
moving party, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995), perceived that there were genuine issues of material fact that warranted
the denial of summary judgment in all but one respect. The pretrial judge also
issued preliminary injunctive relief to Second Inning. In those earlier
proceedings, the court did not objectively regard the lawsuit as being patently
frivolous.
We recognize that the pretrial judge did dismiss the claims against co-
defendant Nicholas on summary judgment. We realize that his alleged role in
participating in the parties' transactions was not borne out after the pleadings
stage. Even so, with all due respect to the trial judge, the complaint's inclusion
of claims against Nicholas, and, for that matter, his co-defendant sister Liliane—
both of whom were part owners of RELAP—do not appear to rise to the extreme
level of frivolity contemplated under the statute and rule. The trial court
therefore misapplied its discretion in singling out the complaint's over-
inclusiveness in encompassing those individuals. Masone v. Levine, 382 N.J.
22 A-0129-23 Super. 181, 193 (App. Div. 2005) (noting the appellate court's limited authority
to vacate sanctions).
That said, we reject defendants' arguments that sanctions should also have
been awarded in favor of Alan, Marcel, and Roger. Again, this was a hard-
fought business dispute that ultimately was decided only after months of trial,
and not a patently frivolous misuse of the court system.
III.
Defendants' cross-appeals complaining about the trial court's denial of
summary judgment has no merit. In retrospect, the court, with the benefit of a
well-developed record of trial testimony and documentary exhibits, was
persuaded that plaintiff could not sustain its burden of proof. But that does not
mean that summary judgment was improperly denied by the pretrial judge, who
had a much more limited vantage point.
Affirmed in part as to the merits, reversed as to imposition of fee -shifting
sanctions.
23 A-0129-23