Motion to Compel Discovery in Trocano Barbara Vs Stevens Glenn| Trellis.Law

On July 23, 2021 a Motion,Ex Parte was filed involving a dispute between Barbara Trocano, Caroline Stevens, Edcost I Llc, Glenn Stevens, and Caroline Stevens, Century 21 Solid Reality Co, Cta Title Service Llc, Glenn Stevens, John Doe I, John Doe Ii, Michael Poole, Russell Trocano Jr Esq, Solid Gold Realty Inc, Solid Gold Realty Llc, Steven Poole, Xyz Corporation I, Xyz Corporation Ii, for Contract/Commercial Transaction in the District Court of Bergen County.

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BER-L-004906-21 03/02/2022 7:43:13 PM Pg 1 of 5 Trans ID: LCV2022880984

DAY PITNEY LLP
C. John DeSimone, III
Attorney I.D. No. 035101997
Erin Hodgson
Attorney I.D. No. 274452018
ONE JEFFERSON ROAD
PARSIPPANY, NJ 07054
(973) 966-6300
Attorneys for Plaintiffs

: SUPERIOR COURT OF NEW JERSEY
BARBARA TROCANO and THE LAW DIVISION: BERGEN COUNTY
EDCOST I LLC, :
DOCKET NO. BER-L-4906-21
Plaintiffs, :

vs. :

GLENN STEVENS; CAROLINE :
STEVENS; MICHAEL POOLE; STEVEN NOTICE OF MOTION TO COMPEL ANN
:
POOLE; SOLID GOLD REALTY INC. MARIE KUHN, ESQ., TO COMPLY
dba CENTURY 21 SOLID GOLD WITH SUBPOENA
REALTY INC.; SOLID GOLD REALTY :
LLC dba CENTURY 21 SOLID GOLD
REALTY LLC; CTA TITLE SERVICE :
LLC; JOHN DOE I, II (fictitious names);
XYZ CORPORATION I, II (fictitious :
name),
:
Defendants.
:

GLENN STEVENS and CAROLINE :
STEVENS,
:
Third-Party Plaintiffs,
:
vs.

RUSSELL TROCANO, JR., ESQ. :

Third-Party Defendant. :

TO: SCHENCK, PRICE, SMITH & KING, LLP
Eric A. Inglis, Esq.
220 Park Avenue
P.O. Box 991
Florham Park, NJ 07932
Attorneys for Defendants Glenn Stevens and Caroline Stevens

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OTTINO & FUGGI LAW,LLC
Joseph F. Ottino, Jr., Esq.
721 Brick Boulevard Suite C
Brick, NJ 08723
Attorneys for Defendants Michael Poole, Steven Poole, Solid Gold Realty Inc. dba
Century 21 Solid Gold Realty Inc., Solid Gold Realty LLC dba Century 21 Solid Gold
Realty LLC, and CTA Title Service, LLC

KING, KITRICK, JACKSON, McWEENEY & WELLS
Ann Marie Kuhn, Esq.
Summit Corporate Center
2329 Hwy 34, Suite 104
Manasquan, NJ 08736

35 Beaverson Blvd.
Building 9, Suite A
Brick, NJ 08723

Iram Valentin, Esq.
Kaufman Dolowich Voluck
Court Plaza North
25 Main Street, Suite 500
Hackensack, NJ 07601
Attorneys for Third-Party Defendant Russell Trocano, Esq.

COUNSEL:

PLEASE TAKE NOTICE that on Friday, March 18, 2022 at 9:00 in the forenoon or as

soon thereafter as counsel may be heard, Day Pitney LLP, attorneys for Plaintiffs Barbara

Trocano (“Trocano”) and The Edcost I, LLC (“Edcost,” collectively with Trocano, “Plaintiffs”)

will move before the Honorable Gregg A. Padovano, J.S.C., of the Superior Court of New Jersey,

Law Division, Bergen County, located at the Bergen County Courthouse, 10 Main Street, Room

331, Hackensack, NJ, for an Order compelling Ann Marie Kuhn, Esq. to comply with the

subpoena served on or around December 28, 2021 (the “Kuhn Subpoena”).

PLEASE TAKE FURTHER NOTICE that in support of the within Motion, Plaintiffs

shall rely upon the Letter Brief and Certification of Erin Hodgson submitted herewith; and

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PLEASE TAKE FURTHER NOTICE that pursuant to R. 1:6-2(d), Plaintiffs do not

request oral argument, unless timely opposition is filed; and

PLEASE TAKE FURTHER NOTICE that opposition to this motion must be filed and

served no later than 8 days before the return date; and

PLEASE TAKE FURTHER NOTICE that at that time and place aforesaid, Plaintiffs

will request the entry of the enclosed proposed form of Order submitted herewith, and

PLEASE TAKE FURTHER NOTICE that the case has no set discovery end date and

no trial date.

DAY PITNEY LLP
Attorneys for Plaintiffs
Barbara Trocano & The Edcost I, LLC

DATED: March 2, 2022

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CERTIFICATION OF FILING

I hereby certify that on this date, the Notice of Motion, Letter Brief, Certification of Erin

Hodgson (and exhibits thereto), and proposed form of Order were filed electronically using the

judiciary’s eCourts system.

/s/ Erin Hodgson
ERIN HODGSON

DATED: March 2, 2022

CERTIFICATE OF SERVICE

I hereby certify that on this date, the Notice of Motion, Letter Brief, Certification of Erin

Hodgson (and exhibits thereto), and proposed form of Order were served on defendants Glenn

Stevens, Caroline Stevens, Michael Poole, Solid Gold Realty Inc. dba Century 21 Solid Gold

Realty Inc., Solid Gold Realty LLC dba Century 21 Solid Gold Realty LLC, Steven Poole, and

CTA Title Service, LLC via the judiciary’s eCourts notification system, as well as a copy via e-

mail to their counsel at the following addresses:

SCHENCK, PRICE, SMITH & KING, LLP
Eric A. Inglis, Esq.
220 Park Avenue
P.O. Box 991
Florham Park, NJ 07932
eai@spsk.com

OTTINO & FUGGI LAW, LLC
Joseph F. Ottino, Jr., Esq.
721 Brick Boulevard Suite C
Brick, NJ 08723
jfolaw@yahoo.com

I further hereby certify that on this date, the Notice of Motion, Letter Brief, Certification

of Erin Hodgson (and exhibits thereto), and proposed form of Order, were served on Ann Marie

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Kuhn, Esq., via e-mail with service via Guaranteed Subpoena to follow at the following

addresses:

Ann Marie Kuhn, Esq.
Summit Corporate Center
2329 Hwy 34, Suite 104
Manasquan, NJ 08736

35 Beaverson Blvd.
Building 9, Suite A
Brick, NJ 08723
akuhn@kkjmlawfirm.com

Finally, because Mr. Valentin has not formally entered an appearance, I served the Notice

of Motion, Letter Brief, Certification of Erin Hodgson (and exhibits thereto), and proposed form

of Order, on him via e-mail and U.S. mail as follows:

Iram Valentin, Esq.
Kaufman Dolowich Voluck
Court Plaza North
25 Main Street, Suite 500
Hackensack, NJ 07601
IValentin@kdvlaw.com

/s/ Erin Hodgson
ERIN HODGSON

DATED: March 2, 2022

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DAY PITNEY LLP
C. John DeSimone, III
Attorney I.D. No. 035101997
Erin Hodgson
Attorney I.D. No. 274452018
ONE JEFFERSON ROAD
PARSIPPANY, NJ 07054
(973) 966-6300
Attorneys for Plaintiffs

: SUPERIOR COURT OF NEW JERSEY
BARBARA TROCANO and THE LAW DIVISION: BERGEN COUNTY
EDCOST I LLC, :
DOCKET NO. BER-L-4906-21
Plaintiffs, :

vs. :

GLENN STEVENS; CAROLINE :
STEVENS; MICHAEL POOLE; STEVEN ORDER COMPELLING ANN MARIE
POOLE; SOLID GOLD REALTY INC. :
KUHN, ESQ., TO COMPLY WITH
dba CENTURY 21 SOLID GOLD SUBPOENA
REALTY INC.; SOLID GOLD REALTY :
LLC dba CENTURY 21 SOLID GOLD
REALTY LLC; CTA TITLE SERVICE :
LLC; JOHN DOE I, II (fictitious names);
XYZ CORPORATION I, II (fictitious :
name),
:
Defendants.
:
GLENN STEVENS and CAROLINE :
STEVENS,
:
Third-Party Plaintiffs,
:
vs.

RUSSELL TROCANO, JR., ESQ. :

Third-Party Defendant. :

THIS MATTER having been opened before the Court on the motion of Day Pitney LLP,

attorneys for Plaintiffs Barbara Trocano (“Trocano”) and The Edcost I, LLC (“Edcost,”

collectively with Trocano, “Plaintiffs”), on notice to counsel for Defendants Glenn Stevens,

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Caroline Stevens, Michael Poole, Solid Gold Realty Inc. dba Century 21 Solid Gold Realty Inc.,

Solid Gold Realty LLC dba Century 21 Solid Gold Realty LLC, Steven Poole, and CTA Title

Service, LLC (collectively, “Defendants”) and to Ann Marie Kuhn, Esq., for an Order for Ann

Marie Kuhn, Esq. to Comply With the Subpoena served on or around December 28, 2021 (the

“Kuhn Subpoena”), and the Court having considered the papers filed in support of this application

and any opposition filed thereto; and the Court having heard oral argument, if any; and for good

cause having been shown;

IT IS, on this ___________ day of ___________________, 2022,

ORDERED that Kuhn produce all materials responsive to Requests #9 - #11 in the Kuhn

Subpoena, specifically those from matters outside of the Stevens’ purchase of the Property, in her

possession to Plaintiffs in accordance with the guidelines and definitions set forth in the Kuhn

Subpoena; and it is further

ORDERED that Kuhn shall provide her response to the Kuhn Subpoena within seven (7)

days of the receipt of this filed Orders; and it is further

ORDERED that a copy of the within Order shall be deemed served upon all parties as of

its filing on eCourts, which triggers electronic notification to all counsel of record, and that a

copy of the within Order be served by Plaintiffs upon Kuhn and Mr. Valentin within seven (7)

days of this Order’s filing on eCourts.

Hon. Gregg A. Padovano, J.S.C.

Opposed
Unopposed

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DAY PITNEY LLP
C. John DeSimone, III
Attorney I.D. No. 035101997
Erin Hodgson
Attorney I.D. No. 274452018
ONE JEFFERSON ROAD
PARSIPPANY, NJ 07054
(973) 966-6300
Attorneys for Plaintiffs

: SUPERIOR COURT OF NEW JERSEY
BARBARA TROCANO and THE LAW DIVISION: BERGEN COUNTY
EDCOST I LLC, :
DOCKET NO. BER-L-4906-21
Plaintiffs, :

vs. :

GLENN STEVENS; CAROLINE :
STEVENS; MICHAEL POOLE; STEVEN CERTIFICATION OF ERIN HODGSON
:
POOLE; SOLID GOLD REALTY INC. IN SUPPORT OF MOTION TO COMPEL
dba CENTURY 21 SOLID GOLD ANN MARIE KUHN, ESQ., TO COMPLY
REALTY INC.; SOLID GOLD REALTY :
WITH SUBPOENA
LLC dba CENTURY 21 SOLID GOLD
REALTY LLC; CTA TITLE SERVICE :
LLC; JOHN DOE I, II (fictitious names);
XYZ CORPORATION I, II (fictitious :
name),
:
Defendants.
:

GLENN STEVENS and CAROLINE :
STEVENS,
:
Third-Party Plaintiffs,
:
vs.

RUSSELL TROCANO, JR., ESQ. :

Third-Party Defendant. :

ERIN HODGSON, being of full age, hereby certifies as follows:

1. I am an attorney-at-law admitted to practice in the State of New Jersey and an

Associate with the firm of Day Pitney LLP, counsel for plaintiffs Barbara Trocano (“Trocano”)

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and The Edcost I, LLC (“Edcost,” collectively with Trocano, “Plaintiffs”). I make this

Certification in support of Plaintiffs’ Motion to Compel Ann Marie Kuhn, Esq., to Comply With

the Subpoena served on or around December 28, 2021 (the “Kuhn Subpoena”).

2. This action stems from a dispute over funds currently held in escrow from the sale

of real property located at 280 Dutchman’s Point Road, Mantoloking, New Jersey 08738 (located

in the Township of Brick), Ocean County, New Jersey, otherwise known as Block 44.05 and Lots

23 and 23.01 on the tax map of said municipality (the “Property”). Edcost sold the Property to

defendants Glenn Stevens and Caroline Stevens (collectively, “Stevens”) in September 2020.

3. Upon information and belief, Stevens were represented in the transaction by Ann

Marie Kuhn, Esq.

4. As part of the sale transaction, Plaintiffs and Stevens entered into an Escrow

Holdback Addendum (“Escrow”). The Escrow was intended to keep $550,000.00 in an escrow

account to be released to Plaintiffs once tideland and riparian rights were secured for the Property

by Plaintiffs. The Escrow provided six months plus a six month extension for the rights to be

secured. Upon information and belief, Defendants each misrepresented to Plaintiffs that it was

possible to obtain the needed approvals within the six month period extended to twelve months.

5. Plaintiffs did not learn until long after the Escrow was executed that the timeline

was not possible to achieve. In advance of the twelve month deadline, Plaintiffs filed this action

on July 23, 2021 to prevent the premature release of the funds in Escrow.

6. On January 21, 2022, Plaintiffs filed an Amended Complaint in this action.

Attached hereto as Exhibit A is a true and correct copy of the Amended Complaint filed by

Plaintiffs.

7. On February 7, 2022, Stevens filed an answer to the Amended Complaint (“Stevens

Answer”). Attached hereto as Exhibit B is a true and correct copy of the Stevens Answer.

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8. On February 7, 2022 and amended on February 9, 2022, defendants Michael Poole,

Steven Poole, Solid Gold Realty Inc. dba Century 21 Solid Gold Realty Inc., Solid Gold Realty

LLC dba Century 21 Solid Gold Realty LLC, and CTA Title Service, LLC (collectively, the

“Poole Defendants”) filed an answer to the Amended Complaint (“Poole Answer”). Attached

hereto as Exhibit C is a true and correct copy of the Poole Answer.

9. On or around December 28, 2021, Plaintiffs served Ann Marie Kuhn, Esq., with a

subpoena pursuant to her work as real estate counsel for the Stevens in the purchase of the

Property (the “Kuhn Subpoena”). Attached hereto as Exhibit D is a true and correct copy of the

Kuhn Subpoena.

10. Critically, the subpoena expressly disclaimed any request for privileged materials,

and specifically directed that Kuhn not produce any privileged materials.

11. Upon information and belief, Kuhn has worked with Christopher J. LaMonica, Esq.,

the attorney retained to pursue the tidelands and riparian rights application, on other cases

involving tidelands rights and so is familiar with the application process.

12. Kuhn responded to the Kuhn Subpoena on or about January 26, 2022 with the real

estate file for the Stevens’ purchase of the Property and a cover letter (“First Kuhn Production”).

Attached hereto as Exhibit E is a true and correct copy of the cover letter enclosing the First

Kuhn Production.

13. After an initial cursory review of the First Kuhn Production, I sent a letter to Kuhn

on January 27, 2022 addressing requests made in the Kuhn Subpoena to which the First Kuhn

Production did not properly respond. In relevant part for the purposes of this motion, the January

27, 2022 Letter reiterated Request #11’s language seeking documents both related to Stevens and

unrelated to Stevens as well as Request #9’s language seeking communications between Kuhn

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and LaMonica from other matters. Attached hereto as Exhibit F is a true and correct copy of the

Plaintiffs January 27, 2022 Letter.

14. On January 27, 2022, I spoke with Kuhn via phone call about the Kuhn Subpoena

and January 27, 2022 Letter. In brief summary, she stated her office would not be producing

documents from other matters in response to Requests #9-11 as they felt these documents would

not be relevant. I explained the relevance of the documents to showing Kuhn’s, and by extension,

Stevens’, knowledge of how long the tidelands application process takes to support our claims. I

agreed to get back to her with a more detailed response to her concerns.

15. In furtherance of that conversation, I sent Kuhn a letter on January 28, 2022 (the

“January 28, 2022 Letter”) which attempted to explain the relevance of the requested documents

in detail and explore possible solutions to address Kuhn’s concerns. Attached hereto as Exhibit

G is a true and correct copy of the January 28, 2022 Letter.

16. Also on January 28, 2022, Kuhn made a supplemental production of documents in

response to the Kuhn Subpoena (“Supplemental Documents”). The cover letter enclosing the

Supplemental Documents stated Kuhn would not provide documents from other dealings she has

had with LaMonica and, in response to my earlier concerns regarding Request #11: “See

enclosed.” Attached hereto as Exhibit H is a true and correct copy of the cover letter enclosing

the Supplemental Documents.

17. The Supplemental Documents were not responsive to Requests #9-11 but due to the

close timing of the exchange of the January 28, 2022 Letter and the Supplemental Documents, it

was unclear whether the January 28, 2022 Letter was reviewed or considered before the

production was made. Because of that close timing, I sent one last letter on February 3, 2022 (the

“February 3, 2022 Letter”) again clarifying Requests #9-11 and the earlier letters in the hopes of

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coming to a resolution. Attached hereto as Exhibit I is a true and correct copy of the February 3,

2022 Letter.

18. Kuhn has produced no further documents responsive to Request #9-11 and her only

response to the February 3, 2022 Letter was an e-mail stating “I do not have any other tideland

information.” Attached hereto as Exhibit J is a true and correct copy of Kuhn’s e-mail response.

I certify that the foregoing statements made by me are true. I am aware that if any of the

foregoing statements made by me are willfully false, I am subject to punishment.

/s/ Erin Hodgson
ERIN HODGSON

DATED: March 2, 2022

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EXHIBIT A
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LCV2022276938

D AY P I T N E Y L L P
ONE JEFFERSON ROAD
PARSIPPANY, NJ 07054-2891
(973) 966-6300
By C. JOHN DESIMONE, III
Attorney I.D. No. 035101997
By Erin Hodgson
Attorney I.D. Np. 274452018
Attorneys for Plaintiffs
Barbara Trocano and The Edcost I, LLC
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: BERGEN COUNTY
:
BARBARA TROCANO and THE
EDCOST I LLC, : DOCKET NO. BER-L-4906-21

Plaintiffs, :
Civil Action
vs. :

GLENN STEVENS; CAROLINE :
AMENDED COMPLAINT AND
STEVENS; MICHAEL POOLE; STEVEN DEMAND FOR JURY TRIAL
:
POOLE; SOLID GOLD REALTY INC.
dba CENTURY 21 SOLID GOLD
REALTY INC.; SOLID GOLD REALTY :
LLC dba CENTURY 21 SOLID GOLD
REALTY LLC; CTA TITLE SERVICE :
LLC; JOHN DOE I, II (fictitious names);
XYZ CORPORATION I, II (fictitious :
name),
:
Defendants.

AMENDED COMPLAINT AND JURY DEMAND

Plaintiffs Barbara Trocano (“Trocano”) and The Edcost I, LLC (“Edcost,” and

collectively, “Plaintiffs”), hereby complain of Defendants Glenn Stevens and Caroline Stevens

(collectively, “Stevens”), Michael Poole (“MP”) and Solid Gold Realty Inc. dba Century 21

Solid Gold Realty Inc., Solid Gold Realty LLC dba Century 21 Solid Gold Realty LLC (“C21”

and collectively, “Realtors”), Steven Poole (“SP”) and CTA Title Service LLC (“CTA,” and

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collectively, “Escrow Agent”), and John Doe I, II and XYZ Corporation I, II (collectively,

“Fictitious Defendants”),1 as follows:

JURISDICTION AND VENUE

1. Venue is appropriate pursuant to R. 4:3-2 as this is the County where Plaintiff

Trocano resides and where Plaintiff Edcost maintains its registered office.

2. This Court has jurisdiction pursuant to R. 4:3-1.

FACTS APPLICABLE TO ALL COUNTS

The Parties and Background

3. Trocano is a natural person, aged 84 and a widow, residing at 640 Wishing Well

Road, Wyckoff, New Jersey 07481, and the sole or managing member of Edcost.

4. At all times hereto Trocano was acting in her capacity as the sole or managing

member of Edcost.

5. Edcost is a New Jersey Limited Liability Company that has a registered address

located at 640 Wishing Well Road, Wyckoff, New Jersey 07481, and was the immediate prior

owner of the subject real property (defined below).

6. Stevens are, upon information and belief, natural persons that reside at 57

Lamerson Road, Chester, New Jersey 07930, and are also the current owners of the subject real

property (defined below).

7. MP is, upon information and belief, a natural person and a Realtor Associate at

C21, and resides at 127 Elizabeth Ave., Lavallette, New Jersey 08735. Upon information and

belief MP may also be an employee of CTA.

Stevens, Realtors, Escrow Agent, and Fictitious Defendants are collectively referred to
1

as the “Defendants.”
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8. SP is, upon information and belief, a natural person and a Member of CTA, and

resides at 721 Brick Blvd., Brick, New Jersey 08723. Upon information and belief, SP may also

be an employee of C21.

9. Solid Gold Realty Inc. dba Century 21 Solid Gold Realty Inc., is, upon

information and belief, a foreign for profit corporation pending dissolution/withdrawal in the

State of New Jersey, with offices located at 721 Brick Boulevard, Brick, New Jersey 08723.

Solid Gold Realty LLC dba Century 21 Solid Gold Realty LLC is, upon information and belief, a

foreign limited liability company with offices located at 721 Brick Boulevard, Brick, New Jersey

08723.

10. Upon information and belief, Solid Gold Realty Inc. dba Century 21 Solid Gold

Realty Inc. and Solid Gold Realty LLC dba Century 21 Solid Gold Realty LLC (as noted above,

collectively “C21”) operate interchangeably without regard to corporate forms, and are the alter

ego to each other.

11. CTA is, upon information and belief, a New Jersey Limited Liability Company

with offices located at 721 Brick Boulevard, Brick, New Jersey 08723.

12. Upon information and belief, CTA is owned by SP, who is realtor MP’s brother.

13. At all times relevant hereto, MP and SP acted individually and as agents of CTA

and C21.

14. JOHN DOE I, II, are presently unknown fictitious persons that are believed to

have conspired with the balance of the Defendants with respect to the allegations contained

herein.

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15. XYZ CORPORATION I, II, are presently unknown fictitious corporations that

are believed to have conspired with the balance of the Defendants with respect to the allegations

contained herein.

The Property

16. The subject real property or “Property,” is a parcel of residential land and

improvements located at 280 Dutchman’s Point Road, Mantoloking, New Jersey 08738 (located

in the Township of Brick), Ocean County, New Jersey, otherwise known as Block 44.05 and

Lots 23 and 23.01 on the tax map of said municipality.

17. Upon information and belief, the Property fronts on Barnegat Bay and/or Long

Island Cove, now or formerly flowed by tidewater.

The Closing, Escrow, and Material Misrepresentations

18. Realtors repeatedly solicited Plaintiffs to sell the Property until Plaintiffs finally

acquiesced.

19. Realtors represented both Plaintiffs and buyers Stevens in the sale of the Property.

20. Plaintiffs and Stevens executed a Purchase and Sale Agreement dated on or about

July 14, 2020 for the sale of the Property from Plaintiffs to Stevens.

21. Stevens closed title on the Property on or about September 21, 2020 (the

“Closing”).

22. In advance of the closing, the title company for the purchase, CTA, determined

that the property required clearance of certain tidelands and riparian rights.

23. Upon information and belief, the clearance of certain tidelands and riparian rights

would require clearing of two separate types of tidelands and riparian rights – the so-called

uplands rights (“Uplands”) and flowed or in-water rights (“Flowed”).

4
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24. Realtors did not advise Plaintiffs of the tidelands and riparian rights issues until

shortly before Closing. Realtors told Plaintiffs they needed to open an escrow account and that

$550,000.00 of the purchase price would be placed into that escrow as collateral for a fixed time

while Plaintiffs obtained certain tidelands and riparian rights (the “Escrow”).

25. As a result of the Escrow, Edcost did not receive the full bargain for the sale of

the Property.

26. Realtors reassured Plaintiffs that Plaintiffs would receive a sufficient amount of

time to clear the tideland and riparian rights and that the escrow money would be returned to

Plaintiffs within a year. Upon information and belief, Escrow Agent and Stevens joined in said

representations.

27. Relying on those representations, Plaintiffs entered into a written Escrow

Holdback Addendum with Stevens which provided that $550,000.00 would be placed in an

escrow account and released to Plaintiffs upon “the issuance of a confirmatory grant or other

satisfactory approval by the State of New Jersey for the entire tidelands claim on the subject

property.”

28. The Escrow did not define “the issuance of a confirmatory grant or other

satisfactory approval by the State of New Jersey for the entire tidelands claim on the subject

property.”

29. The Escrow provided a six-month deadline to clear the tideland and riparian rights

with one six-month extension permitted.

30. C21 caused CTA to serve as escrow agent to the Escrow.

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31. Plaintiffs entered into the Escrow under the erroneous and mistaken belief that the

terms of the Escrow could be fulfilled, and specifically that any needed tideland and riparian

approvals could be obtained within one year.

32. Plaintiffs grossly underestimated the realistic time that would be needed to obtain

the approvals, particularly during a global pandemic. Plaintiffs have since been advised that one

year is an altogether impossibly short length of time to clear tidelands and riparian rights issues

from a property and that two or more years, particularly under the COVID-19 pandemic, is more

realistic.

33. Upon information and belief, Defendants knew in advance of the execution of the

Escrow that it was impossible to clear the tideland and riparian rights within the one-year

timeline provided.

34. Upon information and belief, Defendants made material misrepresentations and

omissions to Plaintiffs concerning the amount of time needed to obtain the tideland and riparian

rights, as compared to the time provided in the Escrow.

35. Upon information and belief, Defendants made these material misrepresentations

and omissions to Plaintiffs in order to induce them into entering into the Escrow.

36. In doing so, and by setting an impossible and unconscionable deadline, the

Escrow operates as an unlawful penalty and is impossible to fulfill.

Tidelands Application and Process, COVID-19 Modified

37. Upon information and belief, in or about August or September 2020, in advance

of the Closing, transactional counsel for Stevens, Ann Marie Kuhn, Esq. (“Kuhn”) spoke with

Christopher LaMonica, Esq. (“LaMonica”), an attorney who specializes in tidelands and riparian

right claims and applications.

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38. Upon information and belief, Kuhn asked LaMonica about the likelihood of

obtaining tidelands and riparian approvals within one year.

39. Upon information and belief, LaMonica informed Kuhn that the one year timeline

provided for in the Escrow would be impossible to achieve even in non-COVID-19 times as the

application process is so time-consuming and relies on numerous state actors to progress. Upon

information and belief, LaMonica went further and stressed that the process takes even more

time with slow-downs and practical difficulties caused by the COVID-19 pandemic.

40. By way of example and not one of limitation, due to the COVID-19 pandemic,

many government employees have been working remotely.

41. Upon information and belief, the remote work status of government employees

has significantly slowed down the tidelands/riparian application process because much of the

process relies on paperwork. Employees – and sometimes applicants -- have had to drive to one

another’s residences or meet at public halfway points to pass off paperwork requiring signatures

or review.

42. Upon information and belief, LaMonica warned Kuhn of the timeline’s

impossibility, particularly due to COVID-19 delays, and Kuhn passed that warning on to Stevens

in August or September 2020.

43. Upon information and belief, Stevens proceeded with the Escrow despite knowing

its provided timeline was impossible to achieve.

44. Upon information and belief, Realtors and Escrow Agent similarly knew of the

impossibility of the timeline and nevertheless withheld that information from Plaintiffs when

encouraging them to enter into the Escrow in August or September 2020.

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45. Plaintiffs relied on the misrepresentations and omissions of Realtors, Escrow

Agent, and Stevens in agreeing to execute the Escrow and place $550,000.00 in Escrow.

46. Defendants’ actions and/or inactions damaged Plaintiffs.

47. Alternatively, upon information and belief, if Stevens and the other Defendants

did not mislead Plaintiffs, intentionally or otherwise, into entering into the Escrow, then they,

like Plaintiffs, entered into the Escrow under the mistaken belief that the one-year timeline to

obtain tidelands and riparian approvals was possible and achievable. The parties involved in the

Escrow shared an erroneous assumption as to the amount of time necessary to obtain the

tidelands and riparian approvals, mistakenly believing it to take far less time than is realistic or

possible, particularly during a global pandemic.

Uplands Approval by Escrow “Deadline” - Substantial Compliance

48. Upon information and belief, after an initial short excusable delay, Plaintiffs

ultimately retained LaMonica to handle the tidelands/riparian application process.

49. Upon retention of LaMonica, Plaintiffs learned of the precise nature of the needed

tideland and riparian rights approvals, including the Uplands and Flowed.

50. LaMonica proceeded to diligently seek the Uplands and Flowed, which the State

indicated should be pursued separately.

51. LaMonica has made substantial progress in the process.

52. Following an approvals from the Tidelands Resource Council, on September 2,

2021, Plaintiffs through LaMonica received a Price Letter from the New Jersey Department of

Environmental Protection, Division of Watershed Protection and Restoration (“DEP”).

53. The Price Letter confirmed that the Tidelands Resource Council voted to issue a

confirmatory riparian (Uplands) grant for the sum of $1,000.00 plus $250.00 for the processing

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of the application, which is to be paid by Plaintiff following DEP invoicing for the same and that

following said payments the DEP will proceed to prepare and process the grant document, and

submit it for review and approval by the Commissioner of the DEP, the Attorney General, and

the Secretary of State.

54. Upon information and belief, the actions outlined in the Price Letter will lead to

the grant being executed and subsequently recorded in title.

55. The Price Letter represents “satisfactory approval by the State of New Jersey” for

the tidelands and riparian obligations in the Escrow.

56. Plaintiffs have satisfied the terms of the Escrow by obtaining the Price Letter

within one year of the date of the Escrow.

57. LaMonica continues to prosecute an application for Flowed tidelands.

58. LaMonica has advised Plaintiffs that more time is needed to work on obtaining

the Flowed approval and the paperwork for the Uplands approval, already received.

59. The needed additional time is not because of anything done, or not done, by

Plaintiffs.

Enrichment of Defendants

60. Early on in the process, Plaintiffs were assured they would get extensions as

necessary as tidelands/riparian approval work progressed.

61. Accordingly, Plaintiffs have sought an extension of their time to secure the

tidelands and riparian rights now that they are aware of the impossibility of the one year

timeline.

62. Plaintiffs have also offered to repurchase the Property from the Stevens for the

amount paid by Stevens, but Stevens has refused.

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63. On July 7, 2021, Stevens, seeking to seize on the September 2021 deadline, sent a

letter through counsel demanding $300,000.00 for a six-month extension.

64. Stevens are not prejudiced by the formal absence of the Uplands and Flowed and

any delays beyond the timeline expressed in the Escrow. Upon information and belief Stevens is

still able to obtain a building permit, a CAFRA permit to construct a dock, and other permits and

approvals.

65. Not only can Stevens sell the Property back to Edcost, but Stevens is also free to

sell the Property to others.

66. Upon information and belief, the Property has increased in value by

approximately $500,000.00 since Closing, enriching Stevens.

67. Upon information and belief, Stevens have begun construction on the Property.

68. Stevens would ultimately suffer no prejudice if the Escrow is rescinded altogether

or at least reformed to allow Plaintiffs sufficient time to formally secure the Uplands and

Flowed.

69. Unless the Court grants relief to Plaintiffs, Stevens stands to formally reap a

windfall by: (i) owning the Property that has increased in value by approximately $500,000; and

(ii) by seeking to cause Plaintiffs to forfeit the $550,000.00 in Escrow. Stevens has already

functionally received a windfall insofar as they now own the Property which is worth twice what

they effectively paid for it if the $550,000 in the Escrow is returned to them.

70. Stevens has also received a windfall because of the Price Letter and grant of the

Uplands, as well as the progress made toward getting the Flowed.

71. Upon information and belief, Escrow Agent has received fees for their services in

the Closing and oversight of the Escrow.

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72. Realtors accepted commissions for their representation of both Plaintiffs and

Stevens in the sale of the Property.

73. Escrow Agent and Realtors owe Plaintiffs a fiduciary duty of utmost loyalty and

to act in Plaintiffs’ best interests.

74. Defendants behaved inequitably to Plaintiffs.

75. Plaintiffs have been damaged.

CAUSES OF ACTION

FIRST COUNT
(Reformation/Rescission of Contract – Mutual Mistake – Defendants)

76. Plaintiffs repeat and reallege each of the allegations set forth above as if set forth

herein at length.

77. All involved parties to the Escrow shared the same erroneous assumption as to the

amount of time needed to obtain the tidelands/riparian grants. The parties were mistaken by

grossly underestimated the realistic time that would be needed to obtain the grants, particularly

during a global pandemic.

78. The aforementioned mistake has a material effect on the agreed exchange of

performance.

79. The parties were unaware that the aforementioned assumption may not be true.

80. As a consequence of this mutual mistake, the Escrow should be rescinded and/or

reformed to protect Plaintiffs so that they do not forfeit the escrowed sum.

81. To the extent the Escrow is to be reformed, Plaintiffs should be given a realistic

possibility of obtaining the tidelands/riparian grants called for in the Escrow.

82. To the extent the Escrow is to be reformed, it should be reformed such that

Plaintiffs are given additional time to obtain the tidelands/riparian grants.

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SECOND COUNT
(Reformation/Rescission of Contract – Unilateral Mistake – Defendants)

83. Plaintiffs repeat and reallege each of the allegations set forth above as if set forth

herein at length.

84. Plaintiffs were party to the bargain reflected in the Escrow and were solely

mistaken on a matter relating to a material feature of the Escrow.

85. Specifically, Plaintiffs erroneously assumed the amount of time needed to obtain

the tidelands/riparian grants. Plaintiffs were mistaken by grossly underestimating the realistic

time that would be needed to obtain the grants, particularly during a global pandemic.

86. Plaintiffs’ assumption and unilateral mistake was not induced by negligence.

87. The aforementioned mistake has a material effect on the agreed exchange of

performance.

88. The aforementioned mistake is of such great consequence that enforcement of the

terms of the Escrow as written would be unconscionable.

89. Rescission of the Escrow would not seriously prejudice any other person except

for the loss of the bargain.

90. As a consequence of this unilateral mistake, the Escrow should be rescinded

and/or reformed to protect Plaintiffs so that they do not forfeit the escrowed sum.

91. To the extent the Escrow is to be reformed, Plaintiffs should be given a realistic

possibility of obtaining the tidelands/riparian grants called for in the Escrow.

92. To the extent the Escrow is to be reformed, it should be reformed such that

Plaintiffs are given additional time to obtain the tidelands/riparian grants.

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THIRD COUNT
(Fraud Permitting Rescission/Reformation of the Escrow – Defendants)

93. Plaintiffs repeat and reallege each of the allegations set forth above as if set forth

herein at length.

94. Defendants made false material representations of a presently existing or past

facts, and/or made material omissions, with the

Case Info

Judge

Gregg A Padovano Track Judge’s New Case

Case No.

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Document Filed Date

March 02, 2022

Case Filing Date

July 23, 2021

County

Parties

Arthur M Owens Attorney for the Plaintiff
Barbara Trocano Plaintiff
Caroline Stevens Defendant
Caroline Stevens Plaintiff
Century 21 Solid Reality Co Defendant
C John De Simone Attorney for the Plaintiff
Cta Title Service Llc Defendant
Edcost I Llc Plaintiff
Eric Andrew Inglis Attorney for the Defendant
Eric Andrew Inglis Attorney for the Plaintiff
Glenn Stevens Defendant
Glenn Stevens Plaintiff
Iram P Valentin Attorney for the Defendant
John Doe I Defendant
John Doe Ii Defendant
Joseph F Ottino Attorney for the Defendant
Michael Poole Defendant
Russell P Trocano Attorney for the Plaintiff
Russell Trocano Jr Esq Defendant
Solid Gold Realty Inc Defendant
Solid Gold Realty Llc Defendant
Steven Poole Defendant
Xyz Corporation I Defendant
Xyz Corporation Ii Defendant
Alexandra Kozyra Attorney
WILLIAM WENZEL Attorney

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Motion,Ex Parte: Trocano Barbara Vs Stevens Glenn

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Case Info

Parties