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GLO-L-000940-20 10/16/2020 12:31:53 PM Pg 1 of 5 Trans ID: LCV20201843955
James D. Donnelly
Attorney At Law
1236 Brace Road
Suite C
P.O. Box 536
Cherry Hill, New Jersey 08003
_______________________
Tel - (856) 429-0164 E-MAIL ADDRESS
JAMES D. DONNELLY Fax - (856) 429-7769 JAMES.D@DONNLAW.COM
October 16, 2020
Honorable Timothy W. Chell, J.S.C.
Superior Court of New Jersey
Gloucester County Courthouse
1 North Broad Street
Woodbury, NJ 08096
RE: Vassallo Enterprises, LLC vs. Alex Azzari, et al
Docket No.: GLO-L-000940-20
Motion Returnable: October 30, 2020
Dear Honorable Judge Chell:
Kindly accept this letter in lieu of a more formal brief in
reply to the Defendant’s Motion to Dismiss the Complaint.
As a preliminary matter we respectfully note that the
Defendant’s sole argument is that the Defendant, Alex Azzari, is
protected by the “corporate veil” of Azzari Builders and that
Plaintiff has failed to “pierce the veil”. Db Points II & III.
However, as evidenced by Defendant’s Exhibits “B” & “C”, the
corporate charter of Azzari Builders was revoked by the State on
December 17, 2014 and has not been reinstated:
Said business was placed in a pending Reinstatement Process
on December 17, 2014, and as of the date of this
certificate, has not yet been reinstated. Annual Reports are
outstanding for the following year(s): 2016-2020. Italics
in original.
GLO-L-000940-20 10/16/2020 12:31:53 PM Pg 2 of 5 Trans ID: LCV20201843955
Honorable Timothy W. Chell, J.S.C.
October 16, 2020
Page Two
N.J.S.A. 14A:12-1 provides in part:
Methods of dissolution
(1) A corporation may be dissolved in any one of the
following ways:
(g) Automatically by a proclamation of the Secretary of
State repealing or revoking a certificate of incorporation
for nonpayment of taxes or for failure to file annual
reports;
N.J.S.A. 14A:12-8 provides in part:
Effective time of dissolution.
A corporation is dissolved
(b) upon the proclamation of the Secretary of State issued
pursuant to section 54:11-2 of the Revised Statutes; or
N.J.S.A. 14A:12-9 provides in part:
Effect of dissolution
(1) Except as a court may otherwise direct, a dissolved
corporation shall continue its corporate existence but shall
carry on no business except for the purpose of winding up
its affairs by
(a) collecting its assets;
(b) conveying for cash or upon deferred payments, with or
without security, such of its assets as are not to be
distributed in kind to its shareholders;
© paying, satisfying and discharging its debts and other
liabilities; and
(d) doing all other acts required to liquidate its business
and affairs.
N.J.S.A. 54:11-1 provides:
54:11-1: Voiding charter of delinquent corporations;
extension of time for payment If a corporation created under
any law of this State shall for 2 consecutive years fail to
pay the State a tax which has been or shall be assessed
against it under any law of this State and made payable into
the State Treasury, the charter of such corporation shall be
declared void as provided in section 54:11-2 of this Title,
GLO-L-000940-20 10/16/2020 12:31:53 PM Pg 3 of 5 Trans ID: LCV20201843955
Honorable Timothy W. Chell, J.S.C.
October 16, 2020
Page Three
unless the Secretary of State shall, for good cause shown to
him, give further time for the payment of such tax, in which
case a certificate thereof shall be filed by the Secretary
of State in the office of the Director of the Division of
Taxation, stating the reasons therefor.
It is uncontested and incontestable that the corporate
charter of Azzari Builders was revoked by the New Jersey
Secretary of State on December 17, 2014 under the provisions of
N.J.S.A.14A:12-1(g) and N.J.S.A. 54:11-1. See Defendant’s
Exhibits “B” & “C”. It is also uncontested and incontestable
that because of the revocation Azzari Builders could “carry on no
business except for the purpose of winding up its affairs”
N.J.S.A. 14A:12-8. Finally, it is uncontested and incontestable
that Azzari Builder corporate charted has not been reinstated and
therefore, the corporation does not exist as a matter of law. We
respectfully submit that the Defendant’s argument is without
merit and his Motion must be denied. Plaintiff has set forth a
viable claim against the liable parties.
We next note that all of the transactions that are the basis
of Plaintiff’s claim herein occurred between January 1, 2017, two
years after Azzari Builder’s corporate charter was revoked
(Defendant’s Exhibit “B” & “C”), and March 31, 2019 and that the
charter is still revoked.
N.J.S.A. 42:1A-10 provides in part:
Formation of partnership; rules for determining formation
a. Except as otherwise provided in subsection b. of this
section, the association of two or more persons to carry on
as co-owners a business for profit forms a partnership,
whether or not the persons intend to form a partnership.
GLO-L-000940-20 10/16/2020 12:31:53 PM Pg 4 of 5 Trans ID: LCV20201843955
Honorable Timothy W. Chell, J.S.C.
October 16, 2020
Page Four
N.J.S.A.42:1A-18 provides in part:
Partnership obligations; liability of partners.
a. Except as otherwise provided in subsections b. and c. of
this section, all partners are liable jointly and severally
for all obligations of the partnership unless otherwise
agreed by the claimant or provided by law.
We note that Defendant’s Exhibits “B” & ”C” show that the named
defendants herein, including the Movant, were the persons trading
as Azzari Builders during the time frame in question. It is
respectfully submitted that when the corporation’s charter was
revoked and they continued to operate as a “business for profit”
they became a partnership and are individually liable for the
goods purchased in the name of Azzari Builders. It is
respectfully submitted Plaintiff’s Complaint accurately reflects
the facts and that as a matter of law, Alex J. Azzari is liable
to Plaintiff. Accordingly, the court must deny the Motion to
Dismiss Complaint.
Finally, as found by the Court in Printing Mart-Morristown
v. Sharp Electronics Corporation, 116 N.J. 739, 746 (1989)
In reviewing a complaint dismissed under Rule 4:6-2(e) our
inquiry is limited to examining the legal sufficiency of the
facts alleged on the face of the complaint. However, a
reviewing court "searches the complaint in depth and with
liberality to ascertain whether the fundament of a cause of
action may be gleaned even from an obscure statement of
claim, opportunity being given to amend if necessary." At
this preliminary stage of the litigation the Court is not
concerned with the ability of plaintiffs to prove the
allegation contained in the complaint. For purposes of
analysis plaintiffs are entitled to every reasonable
inference of fact. The examination of a complaint's
allegations of fact required by the afore stated principles
should be one that is at once painstaking and undertaken
with a generous and hospitable approach. Citations omitted.
GLO-L-000940-20 10/16/2020 12:31:53 PM Pg 5 of 5 Trans ID: LCV20201843955
Honorable Timothy W. Chell, J.S.C.
October 16, 2020
Page Five
It is submitted that if the court applies that standard of
review to Plaintiff’s Complaint, as supplemented by the
Defendant’s Exhibits, it must find Plaintiff has set forth a
viable claim against the Defendant, Alex J. Azzari. Attached to
Plaintiff’s Complaint was a statement of account for the period
1/1/2017 through 2/13/2020 and that there is a balance due on the
account of $28,492.74 plus finance charges from 4/1/2019. The
Defendant’s Exhibits “B” & “C” establish the Azzari Builder’s
corporate charter was revoked by the New Jersey Secretary on
December 17, 2014, has never been reinstated, that the named
defendants herein operated as a business for profit in that name
and that Plaintiff sold and delivered diesel fuel them and has
not been paid. Therefore, Plaintiff has pled a contract between
itself and the defendants, breach of the contract by non-payment
and damages. Defendant’s Motion to Dismiss must be denied.
If your Honor has any questions, or requires any further
information, kindly have your law clerk contact me.
Most respectfully submitted,
/s/ James D. Donnelly
JAMES D. DONNELLY
JDD/mlm
cc: Christopher J. Ross, Esquire
Michael Vassallo
GLO-L-000940-20 10/16/2020 12:31:53 PM Pg 1 of 2 Trans ID: LCV20201843955
JAMES D. DONNELLY
NJ ATTORNEY ID NUMBER: 001991982
ATTORNEY AT LAW
1236 BRACE ROAD, SUITE C
P.O. BOX 536
CHERRY HILL, NEW JERSEY 08003-0536
PHONE: (856) 429-0164
FAX: (856) 429-7769
EMAIL: james.d@donnlaw.com
ATTORNEY FOR PLAINTIFF, Vassallo Enterprises, LLC, d/b/a
Community Oil Company, LLC
VASSALLO ENTERPRISES, LLC, : SUPERIOR COURT OF NEW JERSEY
d/b/a Community Oil Company : LAW DIVISION
: GLOUCESTER COUNTY
PLAINTIFF : DOCKET NO. GLO-L-00940-20
:
VS. : CIVIL ACTION
:
ALEX AZZARI, JOHN AZZARI and :
ARTHUR AZZARI, j/s/a, d/b/a, : CERTIFICATION OF FILING
AZZARI BUILDERS : AND MAILING
:
DEFENDANTS. :
The original of the within Letter Brief in Opposition to
Motion to Dismiss Complaint has been filed with the Clerk, Superior
Court of New Jersey, Law Division, 1 North Borad Street, Woodbury,
New Jersey, 08096.
/s/ James D. Donnelly
JAMES D. DONNELLY, ESQUIRE
Attorney for Plaintiff
Vassallo Enterprises, LLC
DATED: October 16, 2020
1
GLO-L-000940-20 10/16/2020 12:31:53 PM Pg 2 of 2 Trans ID: LCV20201843955
PROOF OF MAILING: October 16, 2020, I, the undersigned, mailed
a copy of the following: Letter Brief in Opposition to Motion to
Dismiss by regular mail and certified mail, return receipt
requested,
TO: Christopher J. Ross, Esquire
The Vigilante Law Firm, P.C.
99 North Main Street
Mullica Hill, NJ 08062
Attorneys for Defendant
Alex Azzari
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
wilfully false, I am subject to punishment.
/s/ James D. Donnelly
JAMES D. DONNELLY, ESQUIRE
Attorney for Plaintiff
Vassallo Enterprises, LLC
DATED: October 16, 2020
-2-
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GLO-L-000940-20 10/16/2020 12:31:53 PM Pg 1 of 5 Trans ID: LCV20201843955 James D. Donnelly Attorney At Law 1236 Brace Road Suite C P.O. Box 536 Cherry Hill, New Jersey 08003 _______________________ Tel - (856) 429-0164 E-MAIL ADDRESS JAMES D. DONNELLY Fax - (856) 429-7769 JAMES.D@DONNLAW.COM October 16, 2020 Honorable Timothy W. Chell, J.S.C. Superior Court of New Jersey Gloucester County Courthouse 1 North Broad Street Woodbury, NJ 08096 RE: Vassallo Enterprises, LLC vs. Alex Azzari, et al Docket No.: GLO-L-000940-20 Motion Returnable: October 30, 2020 Dear Honorable Judge Chell: Kindly accept this letter in lieu of a more formal brief in reply to the Defendant’s Motion to Dismiss the Complaint. As a preliminary matter we respectfully note that the Defendant’s sole argument is that the Defendant, Alex Azzari, is protected by the “corporate veil” of Azzari Builders and that Plaintiff has failed to “pierce the veil”. Db Points II & III. However, as evidenced by Defendant’s Exhibits “B” & “C”, the corporate charter of Azzari Builders was revoked by the State on December 17, 2014 and has not been reinstated: Said business was placed in a pending Reinstatement Process on December 17, 2014, and as of the date of this certificate, has not yet been reinstated. Annual Reports are outstanding for the following year(s): 2016-2020. Italics in original. GLO-L-000940-20 10/16/2020 12:31:53 PM Pg 2 of 5 Trans ID: LCV20201843955 Honorable Timothy W. Chell, J.S.C. October 16, 2020 Page Two N.J.S.A. 14A:12-1 provides in part: Methods of dissolution (1) A corporation may be dissolved in any one of the following ways: (g) Automatically by a proclamation of the Secretary of State repealing or revoking a certificate of incorporation for nonpayment of taxes or for failure to file annual reports; N.J.S.A. 14A:12-8 provides in part: Effective time of dissolution. A corporation is dissolved (b) upon the proclamation of the Secretary of State issued pursuant to section 54:11-2 of the Revised Statutes; or N.J.S.A. 14A:12-9 provides in part: Effect of dissolution (1) Except as a court may otherwise direct, a dissolved corporation shall continue its corporate existence but shall carry on no business except for the purpose of winding up its affairs by (a) collecting its assets; (b) conveying for cash or upon deferred payments, with or without security, such of its assets as are not to be distributed in kind to its shareholders; © paying, satisfying and discharging its debts and other liabilities; and (d) doing all other acts required to liquidate its business and affairs. N.J.S.A. 54:11-1 provides: 54:11-1: Voiding charter of delinquent corporations; extension of time for payment If a corporation created under any law of this State shall for 2 consecutive years fail to pay the State a tax which has been or shall be assessed against it under any law of this State and made payable into the State Treasury, the charter of such corporation shall be declared void as provided in section 54:11-2 of this Title, GLO-L-000940-20 10/16/2020 12:31:53 PM Pg 3 of 5 Trans ID: LCV20201843955 Honorable Timothy W. Chell, J.S.C. October 16, 2020 Page Three unless the Secretary of State shall, for good cause shown to him, give further time for the payment of such tax, in which case a certificate thereof shall be filed by the Secretary of State in the office of the Director of the Division of Taxation, stating the reasons therefor. It is uncontested and incontestable that the corporate charter of Azzari Builders was revoked by the New Jersey Secretary of State on December 17, 2014 under the provisions of N.J.S.A.14A:12-1(g) and N.J.S.A. 54:11-1. See Defendant’s Exhibits “B” & “C”. It is also uncontested and incontestable that because of the revocation Azzari Builders could “carry on no business except for the purpose of winding up its affairs” N.J.S.A. 14A:12-8. Finally, it is uncontested and incontestable that Azzari Builder corporate charted has not been reinstated and therefore, the corporation does not exist as a matter of law. We respectfully submit that the Defendant’s argument is without merit and his Motion must be denied. Plaintiff has set forth a viable claim against the liable parties. We next note that all of the transactions that are the basis of Plaintiff’s claim herein occurred between January 1, 2017, two years after Azzari Builder’s corporate charter was revoked (Defendant’s Exhibit “B” & “C”), and March 31, 2019 and that the charter is still revoked. N.J.S.A. 42:1A-10 provides in part: Formation of partnership; rules for determining formation a. Except as otherwise provided in subsection b. of this section, the association of two or more persons to carry on as co-owners a business for profit forms a partnership, whether or not the persons intend to form a partnership. GLO-L-000940-20 10/16/2020 12:31:53 PM Pg 4 of 5 Trans ID: LCV20201843955 Honorable Timothy W. Chell, J.S.C. October 16, 2020 Page Four N.J.S.A.42:1A-18 provides in part: Partnership obligations; liability of partners. a. Except as otherwise provided in subsections b. and c. of this section, all partners are liable jointly and severally for all obligations of the partnership unless otherwise agreed by the claimant or provided by law. We note that Defendant’s Exhibits “B” & ”C” show that the named defendants herein, including the Movant, were the persons trading as Azzari Builders during the time frame in question. It is respectfully submitted that when the corporation’s charter was revoked and they continued to operate as a “business for profit” they became a partnership and are individually liable for the goods purchased in the name of Azzari Builders. It is respectfully submitted Plaintiff’s Complaint accurately reflects the facts and that as a matter of law, Alex J. Azzari is liable to Plaintiff. Accordingly, the court must deny the Motion to Dismiss Complaint. Finally, as found by the Court in Printing Mart-Morristown v. Sharp Electronics Corporation, 116 N.J. 739, 746 (1989) In reviewing a complaint dismissed under Rule 4:6-2(e) our inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint. However, a reviewing court "searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." At this preliminary stage of the litigation the Court is not concerned with the ability of plaintiffs to prove the allegation contained in the complaint. For purposes of analysis plaintiffs are entitled to every reasonable inference of fact. The examination of a complaint's allegations of fact required by the afore stated principles should be one that is at once painstaking and undertaken with a generous and hospitable approach. Citations omitted. GLO-L-000940-20 10/16/2020 12:31:53 PM Pg 5 of 5 Trans ID: LCV20201843955 Honorable Timothy W. Chell, J.S.C. October 16, 2020 Page Five It is submitted that if the court applies that standard of review to Plaintiff’s Complaint, as supplemented by the Defendant’s Exhibits, it must find Plaintiff has set forth a viable claim against the Defendant, Alex J. Azzari. Attached to Plaintiff’s Complaint was a statement of account for the period 1/1/2017 through 2/13/2020 and that there is a balance due on the account of $28,492.74 plus finance charges from 4/1/2019. The Defendant’s Exhibits “B” & “C” establish the Azzari Builder’s corporate charter was revoked by the New Jersey Secretary on December 17, 2014, has never been reinstated, that the named defendants herein operated as a business for profit in that name and that Plaintiff sold and delivered diesel fuel them and has not been paid. Therefore, Plaintiff has pled a contract between itself and the defendants, breach of the contract by non-payment and damages. Defendant’s Motion to Dismiss must be denied. If your Honor has any questions, or requires any further information, kindly have your law clerk contact me. Most respectfully submitted, /s/ James D. Donnelly JAMES D. DONNELLY JDD/mlm cc: Christopher J. Ross, Esquire Michael Vassallo GLO-L-000940-20 10/16/2020 12:31:53 PM Pg 1 of 2 Trans ID: LCV20201843955 JAMES D. DONNELLY NJ ATTORNEY ID NUMBER: 001991982 ATTORNEY AT LAW 1236 BRACE ROAD, SUITE C P.O. BOX 536 CHERRY HILL, NEW JERSEY 08003-0536 PHONE: (856) 429-0164 FAX: (856) 429-7769 EMAIL: james.d@donnlaw.com ATTORNEY FOR PLAINTIFF, Vassallo Enterprises, LLC, d/b/a Community Oil Company, LLC VASSALLO ENTERPRISES, LLC, : SUPERIOR COURT OF NEW JERSEY d/b/a Community Oil Company : LAW DIVISION : GLOUCESTER COUNTY PLAINTIFF : DOCKET NO. GLO-L-00940-20 : VS. : CIVIL ACTION : ALEX AZZARI, JOHN AZZARI and : ARTHUR AZZARI, j/s/a, d/b/a, : CERTIFICATION OF FILING AZZARI BUILDERS : AND MAILING : DEFENDANTS. : The original of the within Letter Brief in Opposition to Motion to Dismiss Complaint has been filed with the Clerk, Superior Court of New Jersey, Law Division, 1 North Borad Street, Woodbury, New Jersey, 08096. /s/ James D. Donnelly JAMES D. DONNELLY, ESQUIRE Attorney for Plaintiff Vassallo Enterprises, LLC DATED: October 16, 2020 1 GLO-L-000940-20 10/16/2020 12:31:53 PM Pg 2 of 2 Trans ID: LCV20201843955 PROOF OF MAILING: October 16, 2020, I, the undersigned, mailed a copy of the following: Letter Brief in Opposition to Motion to Dismiss by regular mail and certified mail, return receipt requested, TO: Christopher J. Ross, Esquire The Vigilante Law Firm, P.C. 99 North Main Street Mullica Hill, NJ 08062 Attorneys for Defendant Alex Azzari 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 wilfully false, I am subject to punishment. /s/ James D. Donnelly JAMES D. DONNELLY, ESQUIRE Attorney for Plaintiff Vassallo Enterprises, LLC DATED: October 16, 2020 -2-