NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1592-24
TIGER REVITALIZATION FUND, LLC and 408 WHITON PLAZA, LLC,
Plaintiffs-Respondents,
v.
309 PINE PLAZA, LLC and SHIMON JACOBOWITZ,
Defendants-Appellants,
and
PINE WHITON HOLDINGS, LLC,
Interested Party. __________________________________
309 PINE PLAZA, LLC, 309 PINE PLAZA TENANT, LLC, 309 PINE PLAZA MANAGER, LLC, CAVEN ACRES, LLC, and SHIMON JACOBOWITZ, individually and derivatively on behalf of 129 LINDEN HOLDINGS, LLC and PINE WHITON HOLDINGS, LLC,
Third-Party Plaintiffs-Appellants, v.
MOSHE C. "MARK" RIGERMAN, PAUL JENSEN, f/k/a YISROEL RIGERMAN, ELIMELECH RIGERMAN, TIGER REVITALIZATION FUND, LLC, 408 WHITON PLAZA, LLC, 408 WHITON PLAZA MANAGER, LLC, STREKTE CORP., STREKTE NY, LLC, STK EIGHT, LLC, FOLXCO, LLC, and CAVEN VIEWS, LLC,
Third-Party Defendants- Respondents.
129 LINDEN HOLDINGS, LLC, LINDEN GARDENS JC LLC, CAVEN POINT PARTNERS LLC, KISPM, LLC, and PINE WHITON HOLDINGS, LLC,
Nominal/Interested Parties. __________________________________
Argued October 27, 2025 – Decided November 24, 2025
Before Judges Sabatino and Walcott-Henderson.
On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C-000072-24.
Luke J. O'Brien argued the cause for appellants (Calcagni & Kanefsky LLP, attorneys; Samuel Scott Cornish and Luke J. O'Brien, of counsel and on the briefs).
A-1592-24 2 Andrew R. Macklin argued the cause for respondents (Brach Eichler, LLC, attorneys; Thomas Kamvosoulis, of counsel; Andrew R. Macklin, of counsel and on the brief; John A. Simeone, on the brief).
PER CURIAM
This appeal concerns whether some or all of the claims in multiple related
lawsuits should be arbitrated. It arises out of a fierce legal battle involving
businessmen Shimon Jacobowitz, Moshe "Mark" Rigerman, Paul Jensen, and
their associated entities.
Despite the complexity of the matter, we endeavor to describe the context
succinctly. Jacobowitz took part with Rigerman and Jensen in four real estate
projects, three in Jersey City and one in New Brunswick.
Of particular relevance here is an agreement between Rigerman and
Jensen entities and Jacobowitz entities regarding one of the properties, located
on Pine Street in Jersey City, which was held under the name Pine Whiton
Holdings, LLC ("Pine Whiton"). According to Jacobowitz, Rigerman and
Jensen represented to him that they were able to develop the Pine Street property
into an apartment building for a total cost of no more than $10 million.
Jacobowitz later claimed Rigerman's and Jensen's representations were
inaccurate, and that the completed project exceeded that sum. Meanwhile,
A-1592-24 3 Rigerman and Jensen claim that their entities own a majority interest in Pine
Whiton as a result of Jacobowitz defaulting on a 2019 loan agreement.
The Operating Agreement ("OA") for Pine Whiton included an arbitration
clause requiring that any dispute arising out of or relating to the agreement or
company "shall be submitted to binding arbitration before a qualified arbitrator
. . . under [a private dispute resolution company's] Streamlined Arbitration
Rules and Procedures."
The parties' interrelated disputes came to a head in 2023. They then
entered into what is described by Jacobowitz as a settlement agreement that
enabled them to refinance the construction loan for the Pine Street project and
obtain a permanent loan and mortgage. The refinancing closed in November
2023, and the parties received funds that Jacobowitz claims were
disproportionately distributed.
Beginning in May 2024, Rigerman, Jensen, and their associated entities
("the Rigerman/Jensen parties") filed four separate complaints, three in the
Chancery Division and one in the Law Division, alleging Jacobowitz and his
entities ("the Jacobowitz parties") engaged in various breaches and misdeeds on
each project. The Jacobowitz parties responded with a 422-paragraph answer
and counterclaim, reciprocally accusing the Rigerman/Jensen parties of various
A-1592-24 4 breaches and misdeeds. Three of the counts in the counterclaim (counts VI, VII
and X) related to the Pine project.
In vigorous motion practice, the Rigerman/Jensen parties argued that
counts VI, VII, and X of the counterclaim must be dismissed and arbitrated in
accordance with the arbitration clause in the OA. The Jacobowitz parties did
not dispute the existence of the arbitration clause but argued the
Rigerman/Jensen parties had waived arbitration. In the alternative, they moved
to compel arbitration for all of the Rigerman/Jensen parties' claims.
In a written order on December 20, 2024, the court granted arbitration
solely as to the three above-noted counts of the counterclaim, leaving all
remaining claims in the Superior Court. The court declined to stay the litigation
while the arbitration proceeded.
The Jacobowitz parties have appealed, arguing the trial court erred in
granting the arbitration motion and in rejecting their assertion of waiver. They
further argue the court erred in denying their cross-motion, in the alternative to
a ruling of waiver, for an order compelling arbitration of all claims subject to
arbitration.
Nothing more needs to be said about the facts and procedural history, with
which the parties are well familiar.
A-1592-24 5 I.
On appeal, the Jacobowitz parties argue: (1) the Rigerman/Jensen parties
waived their right to arbitration under the factors of Cole v. Jersey City Med.
Ctr., 215 N.J. 265, 276 (2013); and (2) in the alternative, if no waiver is found
and arbitration is mandated, then all claims in the related lawsuits should be
adjudicated in that arbitral forum. Relatedly, the Jacobowitz parties request a
stay of all court proceedings pending the outcome of any arbitration because
they contend the 2023 settlement agreement is central to the claims on each
project.
For the reasons that follow, we affirm the trial court's decision referring
only the three specified counts of the counterclaim to arbitration and finding no
waiver. However, we remand the matter for a case management conference. At
the conference the court should further consider, with additional input from
counsel, whether a full or partial stay of the litigation is prudent while the
severed claims are being arbitrated.
A.
Our review of the trial court's ruling is guided by several established
principles.
To begin with, there is a strong judicial preference for "arbitration as a
A-1592-24 6 mechanism of resolving disputes," when parties have agreed to resolve their
differences in that forum in lieu of the court system. Martindale v. Sandvik Inc.,
173 N.J. 76, 92 (2002). Arbitration agreements are only valid if they are "the
product of mutual assent, as determined under customary principles of contract
law." NACCP of Camden Cnty. E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404,
424 (App. Div. 2011). Parties are "not require[d] to arbitrate when they have
not agreed to do so," and parties are not prevented "from excluding certain
claims from the scope of their arbitration agreement." Volt Info. Scis. v. Bd. of
Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 477 (1989). Furthermore "only
those issues may be arbitrated which the parties have agreed shall be." Garfinkel
v. Morristown Obsterics & Gynocology Assoc., P.A., 168 N.J. 124, 132 (2001)
(quoting In re Arb. Between Grover & Universal Underwriters Ins. Co., 80 N.J.
221, 228 (1979)).
A trial court's decision to compel arbitration is reviewed de novo "because
the validity of an arbitration agreement presents a question of law." Ogunyemi
v. Garden State Med. Ctr., 478 N.J. Super. 310, 315 (App. Div. 2024). More
specifically, a court's ruling on a contention of arbitration waiver is reviewed de
novo. Marmo and Sons Gen. Contracting v. Biagi Farms, 478 N.J. Super. 593,
607 (App. Div. 2024).
A-1592-24 7 Generally, waiver is "the voluntary and intentional relinquishment of a
known and existing right." Quigley v. KPMG Peat Marwick, LLC 330 N.J.
Super. 252, 267 (App. Div. 2000) (quoting 13 Williston on Contracts § 39:14
(Lord ed. 2000)). "The same principles govern waiver of a right to arbitrate as
any other right." Cole, 215 N.J. at 276.
Although "waiver is never presumed," an arbitration agreement can "'be
overcome by clear and convincing evidence that the party asserting it chose to
seek relief in a different forum.'" Ibid. (quoting Spaeth v. Srinivasan, 403 N.J.
Super. 508, 514 (App. Div. 2008)). For a party's conduct to constitute waiver,
the conduct should demonstrate waiver "clearly, unequivocally and decisively."
Id. at 277.
Our Supreme Court enumerated in Cole, 215 N.J. at 280-81, seven factors
for assessing whether a party, under the totality of the circumstances, has waived
the right to compel arbitration. Those seven Cole factors are as follows:
(1) the delay in making the arbitration request; (2) the filing of any motions, particularly dispositive motions, and their outcomes; (3) whether the delay in seeking arbitration was part of the party's litigation strategy; (4) the extent of discovery conducted; (5) whether the party raised the arbitration issue in its pleadings, particularly as an affirmative defense, or provided other notification of its intent to seek arbitration; (6) the proximity of the date on which the party sought arbitration to the date of
A-1592-24 8 trial; and (7) the resulting prejudice suffered by the other party, if any.
[Ibid.]
"No one factor is dispositive." Ibid. Moreover, the factors are "non-exclusive."
Largoza v. FKM Real Est. Holdings, 474 N.J. Super. 61, 84 (App. Div. 2022)
(explaining the Cole factors and applying them to a forum selection clause).
Courts may consider other factors in determining waiver based on the "totality
of the circumstances." Cole, 215 N.J. at 80.
Applying these factors to the situation in Cole, the Court held the
defendant that moved to compel arbitration had waived that right for multiple
reasons. Among other things, the Court noted there had been a twenty-one-
month delay in moving to compel arbitration, the motion was filed only three
days before the scheduled trial, the defendant had earlier filed a dispositive
motion for summary judgment, and the defendant had failed in its pleadings to
assert arbitration as one of thirty-five affirmative defenses. Id. at 281-83.
More recently, we illustrated the application of the Cole factors in Marmo,
478 N.J. Super. at 593, concluding in that scenario that the contractual right to
arbitration had been waived. We determined that although a six-month delay
did not weigh heavily in favor of waiver and there had been no motion practice,
the party moving to compel arbitration (there, a plaintiff) had obtained
A-1592-24 9 "substantial discovery" from the defense, while the defense had not conducted
discovery to the same degree. Id. at 612. In addition, we noted that the plaintiff
in Marmo had not raised arbitration in its initial complaint, nor had it asserted
in its Rule 4:5-1 certification attached to these pleadings that arbitration was
contemplated. Id. at 613. We also observed that the presence or absence of
prejudice alone was not a dispositive factor, noting that only "moderate"
prejudice would ensue in that case from granting arbitration. Ibid.
B.
Here, we concur with the trial court's assessment that the balance of Cole
factors weigh in favor of its finding that the Rigerman/Jensen parties had not
waived their right to arbitrate the severed claims. We briefly address the factors,
in turn.
(1) The Delay in Making the Arbitration Request
The chronology reflects there was a delay of approximately six months
from when the first arbitrable claims were filed and when the Rigerman/Jensen
parties sought to compel arbitration. Unlike the circumstances in Cole and
Marmo, the parties here were not engaged in substantial discovery nor post-
pleading active litigation during those six months. Cf. Cole, 215 N.J. at 282
("up to that time, the parties invested considerable time in the lawsuit"); Marmo,
A-1592-24 10 478 N.J. Super. at 612 ("Marmo obtained substantial discovery from Biagi").
The Jacobowitz parties did not file their omnibus pleading and
counterclaim until about six months after the Rigerman/Jensen parties had filed
the Pine action. Once the pleading was filed, it took only a little more than a
month before the Rigerman/Jensen parties announced their intent to seek
arbitration, in connection with their motion to sever.
It is readily apparent that the lawsuits were in their early stages. The delay
here is far less than the twenty-one months that transpired in Cole. Nor is it
qualitatively comparable to the six-month period in Marmo, for the reasons we
have noted.
(2) The Filing of Any Motions, Particularly Dispositive Motions, and Their Outcome
This factor likewise weighs against waiver. We recognize the
Rigerman/Jensen parties initially moved to dismiss the counterclaims unrelated
to the Pine project, without prejudice. But they soon thereafter notified the court
of their intent to move to sever claims and compel arbitration while that
dismissal motion was pending. The dismissal motion appears to have been
grounded on the same procedural logic as the alternative motion to sever:
namely, that claims in the omnibus pleading relating to other projects should not
be heard in the same action as claims relating to the Pine project.
A-1592-24 11 Unlike the situation in Cole, 215 N.J. at 282, we do not discern a
comparable effort to adjudicate issues on their merits through dispositive motion
practice in the court, in order to have those results carried into arbitration. In
any event, the motion practice here did not dispose of any issues on the merits
and was largely procedural and preliminary in nature.
(3) Whether Delay in Seeking Arbitration Was Part of the Party's Litigation Strategy
We are unpersuaded that, as the Jacobowitz parties allege, the Rigerman/
Jensen parties purposefully delayed in seeking arbitration in furtherance of a
presumed litigation strategy to complicate litigation and "overwhelm" their
adversaries with multiple lawsuits and claims in different proceedings.
As we noted above with respect to Cole factor (2), the Rigerman/Jensen
parties evidently would prefer to litigate the issues involving each real estate
project separately, but that preference does not necessarily bespeak a strategic
explanation for their six-month delay in seeking arbitration. Each project in
dispute involves different entities, different agreements, and different alleged
misdeeds. Although the Jacobowitz parties contend that all of the projects are
connected through the 2023 settlement, the parties disagree on the significance
and finality of that agreement. Reasonable minds can differ about whether the
cases are ideally pursued separately instead of being decided in one case in one
A-1592-24 12 forum. In any event, the six-month delay appears to have little, if any,
relationship to a presumed litigation strategy.
(4) The Extent of Discovery Conducted
All parties recognize that this factor does not weigh in favor of waiver .
At oral argument on the appeal and in their briefs, counsel acknowledged that
as of the time arbitration was raised by the Rigerman/Jensen parties, only
discovery demands had been served, without yet the turnover of discovery. No
depositions had been taken.
(5) Whether the Party Raised Arbitration in its Pleadings
The Rigerman/Jensen raised at least one, and arguably two, arbitrable
claims in their initial complaint, but did not disclose that these claims were
subject to an arbitration provision in their accompanying Rule 4:5-1
certification.1
1 Although count II of the Rigerman/Jensen complaint, which asserts claims arising under loan documents which did not contain an arbitration provision, might not necessarily be encompassed within the OA's arbitration provision, the same is not true of count IV, which alleges the Jacobowitz parties breached their fiduciary duties to the Rigerman/Jensen parties "as members and managers of Pine Whiton." The Rigerman/Jensen parties referred to count IV in their opposition to the Jacobowitz parties' motion to show cause. Since that time, the Rigerman/Jensen parties have not expressed a clear intent to continue to pursue their count IV claim. Even so, they were continuing to address it at the time they were moving to compel arbitration. A-1592-24 13 As we noted in Marmo, when a party initiates an action by filing a
complaint in court instead of submitting it to arbitration, and files a companion
Rule 4:5-1 certification that no arbitration is contemplated, that omission is a
factor that generally weighs in favor of waiver. 478 N.J. Super. at 613. Here,
the Rigerman/Jensen parties brought their count IV claim into court, and their
subsequent actions reflect a recognition the claim should have been pursued in
arbitration. Therefore, this particular factor weighs in favor of a waiver of
(6) Proximity to the Date of Trial
In its management of this Chancery action, the trial court established well
in advance a projected trial date of September 8, 2025. The Rigerman/Jensen
parties moved to compel arbitration on November 27, 2024, having previously
notified the trial court of their intent to compel arbitration about three weeks
earlier. We do not regard the ten-month period between November 2024 and
September 2025 to be commensurate with proximity to a trial date. The situation
is not comparable to that in Cole, in which defendant moved for arbitration on
the brink of trial. 215 N.J. at 281. This factor weighs against waiver.
(7) The Resulting Prejudice Suffered by the Other Party
As we clarified in Marmo, 478 N.J. Super. at 607, prejudice cannot be
A-1592-24 14 treated as a dispositive factor in the waiver analysis, see Morgan v. Sundance,
Inc., 596 U.S. 411, 419 (2022), but prejudice remains relevant within the overall
totality of circumstances.
Here, unlike the non-moving party in Cole, the Jacobowitz parties have
not been forced to litigate in a substantial manner the three discrete claims that
are now being referred to arbitration within the court action. 215 N.J. at 282.
As we have noted above, the Rigerman/Jensen parties announced their intention
to compel the Jacobowitz parties' counterclaims relating to the Pine project to
arbitration within just a few weeks of those claims being filed.
We are also unpersuaded that the confidentiality of the arbitration
proceedings weighs in favor of a finding of prejudice to the Jacobowitz parties.
The parties have hurled numerous harsh allegations of improper conduct and
accusations of bad faith at one another in their various court filings. We of
course express no views about the merits of those yet-to-be-litigated
accusations. But the private nature of the arbitration process for a subset of
those claims does not translate into a determination that one side of accusers
will be more prejudiced than another. Indeed, the alternative request of the
Jacobowitz parties to have all claims included within the arbitration, if any are
sent there, undermines their contention that they vitally need to be vindicated
A-1592-24 15 publicly in court.
Summary
In sum, the vast majority of the Cole factors weigh against waiver of the
right to arbitration under the OA. Appellants have not met their burden to prove
waiver by "clear and convincing evidence." We therefore affirm the trial court's
sound finding.
II.
We briefly address the Jacobowitz parties' conditional argument to have
all of the claims in the four lawsuits referred to arbitration, rather than just the
three isolated counts of the counterclaim. As we noted above, our case law has
long recognized that "only those issues may be arbitrated which the parties have
agreed shall be." Garfinkel, 168 N.J. at 132.
The four complaints and the omnibus counterclaim include a wide array
of claims distinct from those that stem solely from the Pine project. Those
claims involve separate transactions and separate agreements. They are not
encompassed by an arbitration clause within an agreement signed on behalf of
one of the Rigerman/Jensen parties. Arbitration clauses must contain "clear and
unambiguous language that [a party] is waiving [its] right to sue or go to court
to secure relief." Atalese v. U.S. Legal Serv. Grp., 219 N.J. 430, 446-47 (2014).
A-1592-24 16 Apart from the Pine Whiton OA, no such clear and unambiguous language in an
agreement mutually executed by the parties is present here. The trial court did
not err in restricting the referral to arbitration accordingly.
Although the parties remain free to revise their preferences and reconsider
whether to consent to have more of the claims, or all of them, resolved in
arbitration, the court should not compel them to do so. The Pine Whiton OA
claims are only one part of a mammoth set of claims. We should not force the
proverbial tail to wag the dog.
That said, we suggest the trial court revisit its decision to deny a stay of
the court cases while the arbitration is pending. When a "court orders
arbitration, the court on just terms shall stay any judicial proceeding that
involves a claim subject to the arbitration. If a claim subject to the arbitration
is severable, the court may limit the stay to that claim." N.J.S.A. 2A:23B-7.
While not required," when significant overlap exists between parties and issues,
claims against parties who have not agreed to arbitrate should be stayed pending
the arbitration." Perez v. Sky Zone, LLC, 472 N.J. Super. 240, 251 (App. Div.
2022). Staying proceedings is intended to avoid "confusion and possible
inconsistent results." Elizabethtown Water Co. v. Watchung Square Assoc.,
LLC, 376 N.J. Super. 571, 578 (App. Div. 2005) (quoting Am. Home Assur.
A-1592-24 17 CO. v. Vecco Concrete Constr. Co., Inc. of Virginia, 629 F.2d 961, 964 (4th Cir.
1980)).
We recognize that this litigation is only in its early stages, having been
entangled in the threshold procedural question of whether referral to arbitration
was warranted. As discovery and investigation unfold, the cases may develop
in ways not presently anticipated. Moreover, there may well be a patent risk of
findings by an arbitrator that may be inconsistent with determinations within the
court action, and vice versa.
With the benefit of our decision today, the parties and the trial court may
wish to reconsider the wisdom of litigating issues in two forums simultaneously.
We therefore order the trial court to convene a case management conference
within twenty days on remand to explore these concerns. We do not retain
jurisdiction.
Affirmed.
A-1592-24 18