Preview
BER-L-000194-23 07/27/2023 3:04:01 PM Pglof6 Trans ID LCV20232196912
SCHEPISI & McLAUGHLIN, P.A.
JOHN A. SCHEPISI*a. ATTORNEYS AT LAW NEW YORK OFFICE
SILVANA D.RASO' A
DANIELLE }. CARDONE*
423 SYLVAN AVENUE 155 E, 557 STREET
REPLY TO: P.O. BOX 1313 SUITE 300B
ANDREW }. NAIDECK*S ENGLEWOOD CLIFFS, N.}. 07632-1313 NEW YORK, NEW YORK 10022
CHRISTIAN M. HIBINSKI*
TELEPHONE: (212) 243-2424
TELEPHONE: (201) 569-9898
OF COUNSEL
RICHARD D. McLAUGHLIN*
FACSIMILE: (201) 569-5350, gs SURREY
EMAIL: JSCHEPISI@SCHEPISL.COM.
WEBSITE: WWW.SCHEPISL.COM aes
* MEMBER N} & NY BAR 26 Ae
MEMBER Nj BAR
§ MEMBER DC BAR i
° COURT QUALIFIED FAMILY LAW MEDIATOR “&
4 COURT QUALIFIED R.i40 MEDIATOR, ep see
9 CERTIFIED BY THE
SUPREME COURT OF
NEW JERSEY AS A
MATRIMONIAL LAW
ATTORNEY
July 27, 2023
VIA ECOURTS
Honorable Mary Thurber, J.S.C
Bergen County Justice Center
10 Main Street, Room 325
Hackensack, New Jersey 07601
Re: Carretta v. Bendezu, et al.
Docket No. BER-L-194-23
Our File No. 413330
Dear Judge Thurber:
Please accept this letter-brief on behalf of Nicholas Carretta (the “Plaintiff’) in lieu of a
more formal opposition to the Motion filed by John Bendezu and Maria Bendezu (the
“Defendants”) to vacate default and file a late Answer.
BACKGROUND
Plaintiff relies on the facts set forth in the General Correspondence dated June 29, 2023
submitted to this Court for relevant facts as if same were set forth and incorporated herein. On
June 30, 2023, default was entered once again against Defendants. On July 17, 2023, Defendants
filed a Notice of Motion to Vacate Default and File a Late Answer in response.
BER-L-000194-23 07/27/2023 3:04:01PM Pg2of6 Trans ID: LCV20232196912
Honorable Mary Thurber, J.S.C.
July 27, 2023
Page 2 of 6
LEGAL ARGUMENT
The denial of a motion to vacate defauit is based on an abuse of discretion
standard. See US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467, 38 A.3d 570 (2012). "[A]n
abuse of discretion ‘arises when a decision is made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis.'" State v. R.Y., 242 N.J.
48, 65, 230 A.3d 292 (2020) (quoting Flage v. Essex Cnty, Prosecutor, 171 N.J. 561, 571, 796
A.2d 182 (2002)). The decision to grant such a motion is left to the sound discretion of the trial
court, and will not be disturbed absent an abuse of discretion. Little, supra, 135 N.J. at 283-84.
While it is well-settled that "the requirements for setting aside a default under Rule 4:43-
3 are less stringent than . . . those for setting aside an entry of default judgment under Rule 4:50-
{" NJ. Mfr.'s Ins. v. Prestige Health Grp., 406 N.J. Super. 354, 360, 967 A.2d 911 (App. Div.
2009) (citing Bernhardt v. Alden Café, 374 N.J. Super. 271, 277 (App. Div. 2005)), such a set
aside of default in this instance is not warranted. Under Rule 4:43-3, a court may vacate the entry
of default upon a mere showing of "good cause," which, under the Rule means "the presence ofa
meritorious defense . . and the absence of any contumacious conduct." O'Connor v. Altus, 67
N.J. 106, 129, 335 A.2d 545 (1975). Whether good cause to vacate default exists "requires the
exercise of sound discretion by the court in light of the facts and circumstances of the particular
case.” Ibid. "[{T]he showing ofa meritorious defense is a traditional element necessary for setting
aside both a default and a default judgment." Pressler & Verniero, Current N.J. Court Rules, cmt.
on Rule 4:43-3 (2020); see also O'Connor, 67 N.J. at 129 (finding "good cause" under Rule 4:43-
3 includes “the presence of a meritorious defense"). Here, Defendants have committed
contumacious conduct and/or no meritorious defense exists to warrant the finding of good cause
to vacate the default.
BER-L-000194-23 07/27/2023 3:04:01PM Pg3of6 Trans ID: LCV20232196912
Honorable Mary Thurber, J.S.C.
July 27, 2023
Page 3 of 6
Defendants’ Motion wholly lacks the proper showing of support for vacating default. In
Defendants’ Certification, Counsel first admits that the failure to timely submit an Answer “was
due solely to the oversight by undersigned and my office” (Mazzie Cert. § 13), While ordinarily
excusable to an extent, the repeated delays and/or inaction up until this point by Counsel in direct
contrast to Court issued deadlines and rules of practice, as expressed previously by Plaintiff in
their submissions, borders the line of intentional misconduct and should potentially be
considered contumacious. However, given the liberality afforded to applications to vacate default
pursuant to Marder v. Realty Construction Co., 84 NJ. Super. 313, 319 (Appellate Division
Aff'd, 43 N.J. 508 (1964)) and any prejudice that shortcomings by Counsel may cause to
Defendants, the greater focus should be turned to the complete lack of any just and meritorious
defense as reasoning to deny this Motion, if not for the aforementioned.
Counsel for Defendants attempts to assert that there is in fact at least one “just and
meritorious defense to the Complaint filed by Plaintiff’ (Mazzie Cert. J 14). The defense(s)
asserted are that:
(1) “Defendants believe that there were material misrepresentations when the Contract
was executed by both the Plaintiff and the real estate broker. At the time the Contract
was executed, the parties failed to disclose that the realtor had in fact built the house
and that Plaintiff was the first purchaser of the subject real estate.” (Mazzie Cert. §
16); and
(2) “Defendants on the other hand believe that there was in fact a basis within the home
inspection to cancel the Contract based upon the same” (Mazzie Cert. 19); and
(3) “Defendants believe there were material misrepresentations made by the Plaintiff and
the realtor in this matter in their failure to disclose, prior to the signing of the
Contract, that the realtor in fact built the home and that the plaintiff was the first
purchaser of the home” (Mazzie Cert. § 21); and
(4) “There is a significant issue as to whether the Plaintiff properly mitigated his
damages in the within matter. (Mazzie Cert. § 23).
BER-L-000194-23 07/27/2023 3:04:01PM Pg4of6 Trans ID: LCV20232196912
Honorable Mary Thurber, J.S.C.
July 27, 2023
Page 4 of 6
These are all porous and immediately disprovable allegations that serve no viability as
meritorious defenses in support of vacating default.
First, the alleged failure to disclose that the realtor built the home and that the Plaintiff
was the first purchaser of the home can in no way be construed to be material misrepresentations,
especially when Defendants have not even set forth a single fact to substantiate their beliefs.
Even if Defendants attempted to elaborate further, no set of facts can support same because taken
in their individual capacity neither allegation if assumed true serves as a basis fo cancel the
Contract given their utter lack of materiality to the transaction. Moreover, the real estate broker
in this transaction was acting as a dual agent for both parties, not just solely for the Plaintiff, and
therefore both parties had equal access to the same source and information. Defendants had
every opportunity to discuss and/or seek clarity on those particular points if they were soft
factors they wished to consider in their decision to purchase, but under no lens can such be
deemed pertinent information the likes of which any lack thereof could justify cancelation. New
Jersey courts have found that failing to disclose certain types of conditions will constitute
material misrepresentations, and if a seller fails to disclose a condition which is latent (not
currently visible or obvious) and plays a vital role in the buyer’s decision to purchase the
property, the seller may be liable for damages. Weintraub v. Krobatsch, 64 N.J. 445, 317 A.2d
68, 1974 N.J. LEXIS 229. Not only do the allegations in Mazzie Cert. 4 16 & 21 fail to constitute
being facts vital to the condition of the home, such are irrelevant supplemental pieces of
information that have no significant effect on any real estate transaction, let alone a material
effect. As such, these alleged material misrepresentations need not be extrapolated upon any
further.
BER-L-000194-23 07/27/2023 3:04:01PM PgS5of6 Trans ID: LCV20232196912
Honorable Mary Thurber, J.S.C.
July 27, 2023
Page 5 of 6
Second, the Contract and home inspection report are documents that speak for themselves
and the language in both is inherently unambiguous irrespective of what Defendants believe or
how Defendants may have interpreted them. Therefore, the allegations in Mazzie Cert. § 19
should be rendered moot on their face and with no justiciable issues stemming from same.
Lastly, the assertion that Plaintiff has not mitigated his damages is completely untrue.
Plaintiff mitigated his damages by acting as swiftly as practicable in securing a new deal for sale
of the home, a position he should not have even been put in, if not but for the breach of the
contract. There is not a single action Plaintiff could have done differently other than the steps
taken, with Plaintiff notably securing an alternate purchaser within only approximately one
month since the cancellation. While perhaps mitigation may be a question of genuine material
fact under different circumstances, it should not be viewed as such here, given that contract law
already delineates what damages Plaintiff
is entitled. In Kuhn y. Spatial Design, Inc., 245 NJ.
Super 378 (App. Div. 1991), the court found that where a real estate contract is breached by a
purchaser, the seller may recover the difference between the contract price and the resale price,
and any incidental and consequential damages less expenses avoided due to the breach, which is
exactly what Plaintiffis seeking. Moreover, in breach of contract matters, damages are permitted
for “the natural and probable consequences of the breach.” Pickett v. Lloyd’s, 131 N.J. 457, 474
(1993). The principles governing the award of compensatory damages are governed by the issue
of foreseeability: the purpose of compensatory damages is uc to put the injured party in as good a
position as he would have had if performance had been rendered as promised.’ What that
position is depends upon what the parties reasonably expected.” Donovan y. Bachstadt, 91 NJ.
434, 444 (1992). After Defendants illegally and prematurely reneged on the Contract which was
anticipated to be honored, it was more than reasonably expected Plaintiff would act to resell the
BER-L-000194-23 07/27/2023 3:04:01PM Pg6of6 Trans ID: LCV20232196912
Honorable Mary Thurber, J.S.C.
July 27, 2023
Page 6 of6
home to recoup any potential losses, which he did, now at a lower purchase price. As such, there
exists no issue of whether Plaintiff properly mitigated damages, given his prompt action and due
to the damages sought being undoubtedly foreseeable and recoverable by matter of law.
Ultimately, none of the potential defenses Defendants have raised could possibly
constitute that of being meritorious and worthy of vacating the default in order to continue this
litigation further given their lack of substance and facial dismissiveness.
CONCLUSION
Accordingly, Defendants’ Motion to vacate default and be permitted to file a late Answer
should be denied.
Respectfully submitted,
SCHEPISI & McLAUGHLIN, P.A.
/sf Christian Hibinski
Christian M. Hibinski, Esq.
Attomeys for Plaintiff,
Nicholas Carretta
ce. All counsel of record (via eCourts)
Preview
BER-L-000194-23 07/27/2023 3:04:01 PM Pglof6 Trans ID LCV20232196912 SCHEPISI & McLAUGHLIN, P.A. JOHN A. SCHEPISI*a. ATTORNEYS AT LAW NEW YORK OFFICE SILVANA D.RASO' A DANIELLE }. CARDONE* 423 SYLVAN AVENUE 155 E, 557 STREET REPLY TO: P.O. BOX 1313 SUITE 300B ANDREW }. NAIDECK*S ENGLEWOOD CLIFFS, N.}. 07632-1313 NEW YORK, NEW YORK 10022 CHRISTIAN M. HIBINSKI* TELEPHONE: (212) 243-2424 TELEPHONE: (201) 569-9898 OF COUNSEL RICHARD D. McLAUGHLIN* FACSIMILE: (201) 569-5350, gs SURREY EMAIL: JSCHEPISI@SCHEPISL.COM. WEBSITE: WWW.SCHEPISL.COM aes * MEMBER N} & NY BAR 26 Ae MEMBER Nj BAR § MEMBER DC BAR i ° COURT QUALIFIED FAMILY LAW MEDIATOR “& 4 COURT QUALIFIED R.i40 MEDIATOR, ep see 9 CERTIFIED BY THE SUPREME COURT OF NEW JERSEY AS A MATRIMONIAL LAW ATTORNEY July 27, 2023 VIA ECOURTS Honorable Mary Thurber, J.S.C Bergen County Justice Center 10 Main Street, Room 325 Hackensack, New Jersey 07601 Re: Carretta v. Bendezu, et al. Docket No. BER-L-194-23 Our File No. 413330 Dear Judge Thurber: Please accept this letter-brief on behalf of Nicholas Carretta (the “Plaintiff’) in lieu of a more formal opposition to the Motion filed by John Bendezu and Maria Bendezu (the “Defendants”) to vacate default and file a late Answer. BACKGROUND Plaintiff relies on the facts set forth in the General Correspondence dated June 29, 2023 submitted to this Court for relevant facts as if same were set forth and incorporated herein. On June 30, 2023, default was entered once again against Defendants. On July 17, 2023, Defendants filed a Notice of Motion to Vacate Default and File a Late Answer in response. BER-L-000194-23 07/27/2023 3:04:01PM Pg2of6 Trans ID: LCV20232196912 Honorable Mary Thurber, J.S.C. July 27, 2023 Page 2 of 6 LEGAL ARGUMENT The denial of a motion to vacate defauit is based on an abuse of discretion standard. See US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467, 38 A.3d 570 (2012). "[A]n abuse of discretion ‘arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" State v. R.Y., 242 N.J. 48, 65, 230 A.3d 292 (2020) (quoting Flage v. Essex Cnty, Prosecutor, 171 N.J. 561, 571, 796 A.2d 182 (2002)). The decision to grant such a motion is left to the sound discretion of the trial court, and will not be disturbed absent an abuse of discretion. Little, supra, 135 N.J. at 283-84. While it is well-settled that "the requirements for setting aside a default under Rule 4:43- 3 are less stringent than . . . those for setting aside an entry of default judgment under Rule 4:50- {" NJ. Mfr.'s Ins. v. Prestige Health Grp., 406 N.J. Super. 354, 360, 967 A.2d 911 (App. Div. 2009) (citing Bernhardt v. Alden Café, 374 N.J. Super. 271, 277 (App. Div. 2005)), such a set aside of default in this instance is not warranted. Under Rule 4:43-3, a court may vacate the entry of default upon a mere showing of "good cause," which, under the Rule means "the presence ofa meritorious defense . . and the absence of any contumacious conduct." O'Connor v. Altus, 67 N.J. 106, 129, 335 A.2d 545 (1975). Whether good cause to vacate default exists "requires the exercise of sound discretion by the court in light of the facts and circumstances of the particular case.” Ibid. "[{T]he showing ofa meritorious defense is a traditional element necessary for setting aside both a default and a default judgment." Pressler & Verniero, Current N.J. Court Rules, cmt. on Rule 4:43-3 (2020); see also O'Connor, 67 N.J. at 129 (finding "good cause" under Rule 4:43- 3 includes “the presence of a meritorious defense"). Here, Defendants have committed contumacious conduct and/or no meritorious defense exists to warrant the finding of good cause to vacate the default. BER-L-000194-23 07/27/2023 3:04:01PM Pg3of6 Trans ID: LCV20232196912 Honorable Mary Thurber, J.S.C. July 27, 2023 Page 3 of 6 Defendants’ Motion wholly lacks the proper showing of support for vacating default. In Defendants’ Certification, Counsel first admits that the failure to timely submit an Answer “was due solely to the oversight by undersigned and my office” (Mazzie Cert. § 13), While ordinarily excusable to an extent, the repeated delays and/or inaction up until this point by Counsel in direct contrast to Court issued deadlines and rules of practice, as expressed previously by Plaintiff in their submissions, borders the line of intentional misconduct and should potentially be considered contumacious. However, given the liberality afforded to applications to vacate default pursuant to Marder v. Realty Construction Co., 84 NJ. Super. 313, 319 (Appellate Division Aff'd, 43 N.J. 508 (1964)) and any prejudice that shortcomings by Counsel may cause to Defendants, the greater focus should be turned to the complete lack of any just and meritorious defense as reasoning to deny this Motion, if not for the aforementioned. Counsel for Defendants attempts to assert that there is in fact at least one “just and meritorious defense to the Complaint filed by Plaintiff’ (Mazzie Cert. J 14). The defense(s) asserted are that: (1) “Defendants believe that there were material misrepresentations when the Contract was executed by both the Plaintiff and the real estate broker. At the time the Contract was executed, the parties failed to disclose that the realtor had in fact built the house and that Plaintiff was the first purchaser of the subject real estate.” (Mazzie Cert. § 16); and (2) “Defendants on the other hand believe that there was in fact a basis within the home inspection to cancel the Contract based upon the same” (Mazzie Cert. 19); and (3) “Defendants believe there were material misrepresentations made by the Plaintiff and the realtor in this matter in their failure to disclose, prior to the signing of the Contract, that the realtor in fact built the home and that the plaintiff was the first purchaser of the home” (Mazzie Cert. § 21); and (4) “There is a significant issue as to whether the Plaintiff properly mitigated his damages in the within matter. (Mazzie Cert. § 23). BER-L-000194-23 07/27/2023 3:04:01PM Pg4of6 Trans ID: LCV20232196912 Honorable Mary Thurber, J.S.C. July 27, 2023 Page 4 of 6 These are all porous and immediately disprovable allegations that serve no viability as meritorious defenses in support of vacating default. First, the alleged failure to disclose that the realtor built the home and that the Plaintiff was the first purchaser of the home can in no way be construed to be material misrepresentations, especially when Defendants have not even set forth a single fact to substantiate their beliefs. Even if Defendants attempted to elaborate further, no set of facts can support same because taken in their individual capacity neither allegation if assumed true serves as a basis fo cancel the Contract given their utter lack of materiality to the transaction. Moreover, the real estate broker in this transaction was acting as a dual agent for both parties, not just solely for the Plaintiff, and therefore both parties had equal access to the same source and information. Defendants had every opportunity to discuss and/or seek clarity on those particular points if they were soft factors they wished to consider in their decision to purchase, but under no lens can such be deemed pertinent information the likes of which any lack thereof could justify cancelation. New Jersey courts have found that failing to disclose certain types of conditions will constitute material misrepresentations, and if a seller fails to disclose a condition which is latent (not currently visible or obvious) and plays a vital role in the buyer’s decision to purchase the property, the seller may be liable for damages. Weintraub v. Krobatsch, 64 N.J. 445, 317 A.2d 68, 1974 N.J. LEXIS 229. Not only do the allegations in Mazzie Cert. 4 16 & 21 fail to constitute being facts vital to the condition of the home, such are irrelevant supplemental pieces of information that have no significant effect on any real estate transaction, let alone a material effect. As such, these alleged material misrepresentations need not be extrapolated upon any further. BER-L-000194-23 07/27/2023 3:04:01PM PgS5of6 Trans ID: LCV20232196912 Honorable Mary Thurber, J.S.C. July 27, 2023 Page 5 of 6 Second, the Contract and home inspection report are documents that speak for themselves and the language in both is inherently unambiguous irrespective of what Defendants believe or how Defendants may have interpreted them. Therefore, the allegations in Mazzie Cert. § 19 should be rendered moot on their face and with no justiciable issues stemming from same. Lastly, the assertion that Plaintiff has not mitigated his damages is completely untrue. Plaintiff mitigated his damages by acting as swiftly as practicable in securing a new deal for sale of the home, a position he should not have even been put in, if not but for the breach of the contract. There is not a single action Plaintiff could have done differently other than the steps taken, with Plaintiff notably securing an alternate purchaser within only approximately one month since the cancellation. While perhaps mitigation may be a question of genuine material fact under different circumstances, it should not be viewed as such here, given that contract law already delineates what damages Plaintiff is entitled. In Kuhn y. Spatial Design, Inc., 245 NJ. Super 378 (App. Div. 1991), the court found that where a real estate contract is breached by a purchaser, the seller may recover the difference between the contract price and the resale price, and any incidental and consequential damages less expenses avoided due to the breach, which is exactly what Plaintiffis seeking. Moreover, in breach of contract matters, damages are permitted for “the natural and probable consequences of the breach.” Pickett v. Lloyd’s, 131 N.J. 457, 474 (1993). The principles governing the award of compensatory damages are governed by the issue of foreseeability: the purpose of compensatory damages is uc to put the injured party in as good a position as he would have had if performance had been rendered as promised.’ What that position is depends upon what the parties reasonably expected.” Donovan y. Bachstadt, 91 NJ. 434, 444 (1992). After Defendants illegally and prematurely reneged on the Contract which was anticipated to be honored, it was more than reasonably expected Plaintiff would act to resell the BER-L-000194-23 07/27/2023 3:04:01PM Pg6of6 Trans ID: LCV20232196912 Honorable Mary Thurber, J.S.C. July 27, 2023 Page 6 of6 home to recoup any potential losses, which he did, now at a lower purchase price. As such, there exists no issue of whether Plaintiff properly mitigated damages, given his prompt action and due to the damages sought being undoubtedly foreseeable and recoverable by matter of law. Ultimately, none of the potential defenses Defendants have raised could possibly constitute that of being meritorious and worthy of vacating the default in order to continue this litigation further given their lack of substance and facial dismissiveness. CONCLUSION Accordingly, Defendants’ Motion to vacate default and be permitted to file a late Answer should be denied. Respectfully submitted, SCHEPISI & McLAUGHLIN, P.A. /sf Christian Hibinski Christian M. Hibinski, Esq. Attomeys for Plaintiff, Nicholas Carretta ce. All counsel of record (via eCourts)