Preview
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 1 of 2 Trans ID: LCV2023241692
John J. Lamb, Esq. (024361977)
BEATTIE PADOVANO, LLC
200 Market Street, Suite 401
Montvale, New Jersey 07645
(201) 573-1810
Attorneys for Plaintiffs,
Rio Vista Mahwah Homeowners Association, Inc. and
Darlington Village Condominium Association, Inc.
And Third-Party Defendants,
Christopher Hudak and Tammy Russo-Hudak
RIO VISTA MAHWAH HOMEOWNERS SUPERIOR COURT OF NEW JERSEY
ASSOCIATION, INC. and DARLINGTON VILLAGE LAW DIVISION
CONDOMINIUM ASSOCIATION, INC., BERGEN COUNTY
Plaintiffs, DOCKET NO.: BER-L-4050-22
v. CIVIL ACTION
TOWNSHIP OF MAHWAH; TOWNSHIP OF
MAHWAH PLANNING BOARD; ESTATE OF NOTICE OF CROSS-MOTIONS TO
JOHN MERRILL; and JOHN DOES 1-10 and XYZ DISMISS PURSUANT TO R. 4:23-
CORPORATIONS 1-10 (fictitious names, true names 2(b)(3) AND ENFORCE LITIGANT’S
being unknown to Plaintiffs at this time), RIGHTS PURSUANT TO R. 1:10-3
Defendants.
ESTATE OF JOHN MERRILL
Third-Party Plaintiff,
v.
CHRISTOPHER HUDAK; TAMMY RUSSO-
HUDAK
Third-Party Defendants.
To: George J. Cotz, Esq.
47 S Franklin Turnpike
Ramsey, NJ 07446-2545
Counsel for Defendant/Third-Party Plaintiff, Estate of John Merrill
4434450_1\220805
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 2 of 2 Trans ID: LCV2023241692
PLEASE TAKE NOTICE that on Friday, January 20, 2023, the undersigned, Beattie
Padovano, LLC, attorneys for Plaintiffs Rio Vista Mahwah Homeowners Association, Inc. and
Darlington Village Condominium Association, Inc., and Third-Party Defendants Christopher
Hudak and Tammy Russo-Hudak shall apply before the Superior Court of New Jersey, Law
Division, Bergen County Courthouse, Hackensack, New Jersey, for an Order dismissing the
Counterclaim and Third Party-Complaint filed by the Estate of John Merrill with prejudice
pursuant to R. 4:23-2(b)(3) and for expenses and attorneys fees incurred in the preparation of this
motion, and to Enforce Litigant’s Rights pursuant to R. 1:10-3 for failure to comply with the
Court’s Order dated December 12, 2022 and granting such other relief as this Court deems fair
and just.
PLEASE TAKE FURTHER NOTICE that, in support of this motion, Plaintiffs shall rely
upon the John J. Lamb, Esq., with exhibits, simultaneously filed herewith.
BEATTIE PADOVANO, LLC
Attorneys Rio Vista Mahwah Homeowners
Association, Inc. and Darlington Village
Condominium Association, Inc. and Third-
Party Defendants Christopher Hudak and
Tammy Russo-Hudak.
By:__/s/ John J. Lamb __
John J. Lamb, Esq.
Dated: January 12, 2023
4434450_1\220805
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 1 of 22 Trans ID: LCV2023241692
John J. Lamb, Esq. (024361977)
BEATTIE PADOVANO, LLC
200 Market Street, Suite 401
Montvale, New Jersey 07645
(201) 573-1810
Attorneys for Plaintiffs,
Rio Vista Mahwah Homeowners Association, Inc.;
Darlington Village Condominium Association, Inc.;
and Third-Party Defendants,
Christopher Hudak and Tammy Russo-Hudak
RIO VISTA MAHWAH HOMEOWNERS SUPERIOR COURT OF NEW JERSEY
ASSOCIATION, INC. and DARLINGTON VILLAGE LAW DIVISION
CONDOMINIUM ASSOCIATION, INC., BERGEN COUNTY
Plaintiffs, DOCKET NO.: BER-L-4050-22
v. CIVIL ACTION
TOWNSHIP OF MAHWAH; TOWNSHIP OF
MAHWAH PLANNING BOARD; ESTATE OF CERTIFICATION OF
JOHN MERRILL; and JOHN DOES 1-10 and XYZ JOHN J. LAMB, ESQ.
CORPORATIONS 1-10 (fictitious names, true names
being unknown to Plaintiffs at this time),
Defendants.
ESTATE OF JOHN MERRILL
Third-Party Plaintiff,
v.
CHRISTOPHER HUDAK; TAMMY RUSSO-
HUDAK
Third-Party Defendants.
John J. Lamb, Esq., of full age, hereby certifies as follows:
4456235_1\230019
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 2 of 22 Trans ID: LCV2023241692
1. I am an attorney at law of the State of New Jersey and am a member of the law
firm of Beattie Padovano, LLC, which is counsel to the Plaintiffs, Rio Vista Mahwah
Homeowners Association and Darlington Village Condominium Association, Inc., and Third-
Party Defendants, Christopher Hudak and Tammy Russo-Hudak, who are members of the Rio
Vista Mahwah Homeowners Association, Inc and Darlington Village Condominium Association.
2. Rio Vista Mahwah Homeowners Association, Inc. is a non-profit corporation of
the State of New Jersey and a community homeowners’ association consisting of 459 homes
(hereinafter “RVMHA”).
3. Darlington Village Condominium Association, Inc. (hereinafter “DVCA”) is a
non-profit corporation of the State of New Jersey which is also comprised of 62 patio home
condominiums which, in addition to being part of the DVCA, is also part of the RVMHA.
4. For ease of reference, the RVMHA and DVCA are hereinafter collectively
referred to as the “HOA.”
5. I make this Certification in opposition to the Estate of John Merrill's Motion to
Enforce Litigant’s Rights which claims that there is a settlement with the Plaintiff which it seeks
to enforce, presumably to avoid dismissal of its Counterclaim and Third-Party Complaint. This
Certification is also made in support of Plaintiffs’ and Third-Party Defendants’ Cross-Motions to
Dismiss with Prejudice pursuant to R. 4:23-5(b)(3) and to Enforce Litigant’s Rights.
6. Plaintiff HOA, in this action, is seeking to invalidate an agreement between the
Township of Mahwah (hereinafter the “Township”) and John Merrill (who is succeeded by the
Estate of John Merrill after his passing) (hereinafter the “Estate” or “Defendant Estate”).
2
4456235_1\230019
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 3 of 22 Trans ID: LCV2023241692
7. As part of this action, the Estate filed an Answer and responsive pleading which
included a Counterclaim against the HOA and a Third-Party Complaint against certain individual
homeowners who are members of the HOA.
8. It is our legal position the Defendant Estate’s Counterclaim and Third-Party
Complaint are frivolous and therefore sent the Defendant Estate a Frivolous Lawsuit Notice
more than 25 days ago. A copy is attached hereto and made a part hereof as Exhibit “A.”
9. The parties to this action continue to seek a settlement of the issue of an
affordable housing project on the property owned by the Estate, called the Fyke Property.
10. To that end, Plaintiff HOA prepared a draft Settlement Agreement with the HOA
and Township of Mahwah (hereinafter “Township”) and Fyke Brook Estates, LLC, the purchaser
from the Estate and current proposed Developer of the Fyke Property (hereinafter the
“Developer”).
11. That draft Settlement Agreement contained a Consent of the Estate as property
owner, and the Estate has acknowledged in its supporting papers that it is aware of the proposed
Settlement Agreement as Plaintiff has been negotiating with the Developer and Township.
12. I have been the attorney principally involved in these negotiations.
13. But the negotiations were going very slowly, at least initially. I personally
prepared the draft Settlement Agreement and sent the draft to the Township’s attorney and the
Developer’s attorney on September 30, 2022. But we did not get any response from the Estate's
purchaser, the Developer, for more than two months.
14. During this time, the HOA, as an association, was often asked to advise
prospective buyers or their lenders of pending lawsuits in order to evaluate the purchase or
whether make the loan in a community where there was a lawsuit.
3
4456235_1\230019
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 4 of 22 Trans ID: LCV2023241692
15. While the Plaintiff 's affirmative claims have been put on hold and are not being
litigated (but we are hopefully awaiting a settlement as noted in several case management
conferences with the Honorable Christine A. Farrington, J.S.C.), dismissal of the Estate’s
Counterclaim and Third-Party Complaint was necessary in order avoid poisoning unrelated
transactions of real property within the HOA.
16. Plaintiff HOA filed a Motion to Dismiss for Defendant Estate’s failure to produce
documents referenced in the Complaint pursuant to R. 4:18-2. That Motion was granted, and the
Defendant Estate’s Counterclaim and Third-Party Complaint were dismissed without prejudice.
17. The Defendant-Counterclaimant–Third-Party Plaintiff Estate contacted my office
to obtain an adjournment of the Motion to Dismiss, but only after the time period to file
opposition expired.
18. We requested that the Estate advise of the reasons for the extension, as we wanted
to cooperate if there was a legitimate reason to grant the extension.
19. However, what was proffered was that the entire action was already settled. That
was not true—even if that is what the HOA ultimately wanted.
20. While progress was indeed being made with the completion of the settlement
agreement, recent discussions reveal that the parties remain at an impasse and require some
movement in order to reach a resolution.
21. While Plaintiff HOA continues to be optimistic there will eventually be a
settlement, which will include the end of the current action, and this opposition should not be
construed as signaling any intent to the contrary, that simply has not happened.
22. There is no signed Settlement Agreement that is binding. And even if it is signed,
there are numerous contingencies which will take some time to be satisfied. That is why the
4
4456235_1\230019
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 5 of 22 Trans ID: LCV2023241692
HOA has no choice to press for the dismissal of the Estates frivolous Counterclaim and Third-
Party Complaint in the interim.
23. The Estate's Motion to Enforce Litigants’ rights attaches no signed settlement
agreement.
24. The Estate’s motion implicitly admits that it is not party to any settlement
agreement with the HOA. It is only party to an alleged settlement with the Township of Mahwah.
25. The Settlement Agreement which the HOA is negotiating will, contrary to the
Estate’s suggestion, involve more than just the number of units to be constructed on the property,
including (but not limited to) setbacks, size of units, and certain terms to be included in proposed
ordinances. It will also include contingencies that make dismissal now inappropriate. Because
the settlement negotiations are ongoing the specific terms being considered are not disclosed to
the Court here. However, it is important to understand that the settlement which the Estate seeks
to enforce (even assuming it is enforceable) covers more than just the number of residential units
to be constructed.
26. The Plaintiff did get notice that the Estate and Township—but not involving the
HOA—signed a statement within the last few months that states that whether or not the
settlement did take place, the Estate would agree to build 25 units on the Property, upon
information and belief. A copy of a letter from the developer’s attorney confirming the
commitment of the developer and property owner to the construction of 25 residential units is
attached hereto as Exhibit “B.”
27. This apparently allowed the Township to continue to evaluate the sufficiency of
the Township Affordable Housing Plan pending in court. Again, the HOA was not a party to
that document or surrounding discussions.
5
4456235_1\230019
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 6 of 22 Trans ID: LCV2023241692
28. This Certification is made in opposition to the Defendant Estate's claim that there
is a settlement with the Plaintiff which it seeks to enforce.
29. Plaintiffs and Third-Party Defendants continue to seek the dismissal of the
frivolous Counterclaim and Third-Party Complaint irrespective of the surrounding settlement
discussions which will hopefully eventually be concluded.
30. As of the time of this filing, Defendant, Estate of Merrill has not provided the
documents required by R. 4:18-2, this Court’s Order dated November 4, 2022 and January 6,
2023. Copies of the aforementioned orders are attached hereto as Exhibit “C” and Exhibit “D,”
respectively.
31. Dismissal of the Counterclaim and Third-Party Complaint with prejudice is
warranted pursuant to R. 4:23-2(b)(3).
32. To date, the Estate has not complied with the Court’s Order dated December 12,
2022, which required the Estate to compensate the HOA in connection with the HOA’s motion to
compel. The HOA is entitled to an order compelling compliance with the December 12, 2022
Order attached hereto as Exhibit “E.”
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.
John J. Lamb, Esq.
Date: January 12, 2023
6
4456235_1\230019
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 7 of 22 Trans ID: LCV2023241692
EXHIBIT "A"
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 8 of 22 Trans ID: LCV2023241692
MARTIN W. KAFAFIAN (NJ, NY, DC BARS) COUNSEL TO THE FIRM
ADOLPH A. ROMEI (NJ, NY BARS) BRENDA J. STEWART (NJ BAR)
JOHN J. LAMB (NJ BAR) JAMES V. ZARRILLO (NJ, NY BARS)
ANTIMO A. DEL VECCHIO (NJ, NY, DC BARS) JEANETTE A. ODYNSKI (NJ, NY BARS)
ROBERT A. BLASS (NJ, NY BARS) COUNSELLORS AT LAW CRISTIN M. KEEGAN (NJ, NY BARS)
ARTHUR N. CHAGARIS (NJ BAR) MARIYA GONOR (NJ, NY, PA BARS)
STEVEN A. WEISFELD (NJ, NY BARS)
200 MARKET STREET, SUITE 401 BARBARA M. MARTIN (NJ BAR)
IRA E. WEINER (NJ BAR) MONTVALE, NEW JERSEY 07645
RENATA A. HELSTOSKI (NJ, NY BARS) IAN M. EASTWICK (NJ, NY BARS)
MICHAEL STERNLIEB (NJ BAR) KIMBERLEY A. BRUNNER (NJ, NY BARS)
DANIELE CERVINO (NJ, NY BARS) (201) 573-1810 JOSEPH A. DIPISA III (NJ, NY BARS)
ARTHUR M. NEISS (NJ, NY BARS) JASON A. CHERCHIA (NJ, NY BARS)
DANIEL L. STEINHAGEN (NJ, NY BARS) GIANNA C. RICCOBONI (NJ, NY BARS)
www.beattielaw.com
MARTIN R. KAFAFIAN (NJ, NY BARS) SHKELQIM PILINCI (NJ, NY, MT BARS)
NEW YORK OFFICE: RALPH J. PADOVANO (1935-2016)
OF COUNSEL
99 MAIN STREET, SUITE 319 JAMES R. BEATTIE (1935-2021)
ROGER W. BRESLIN, JR. (NJ BAR)
NYACK, NEW YORK 10960
THOMAS W. DUNN (NJ BAR) (845) 512-8584
DANA B. COBB (NJ, NY BARS)
IRA J. KALTMAN (NJ, NY BARS)
MARY ELLEN B. OFFER (NJ, NY BARS)
EMERY C. DUELL (NJ, NY BARS)
Reply to New Jersey Office
JOSEPH A. RIZZI (NJ BAR)
Writer’s Direct Access
PATRICK J. MONAGHAN, JR. (NJ, NY BARS)
Email: jlamb@beattielaw.com
Direct Dial and Fax: (201) 799-2105
October 18, 2022
Via Email, Regular Mail and Certified Mail
George J. Cotz Esq.
47 South Franklin Turnpike NOTICE OF FRIVOLOUS
Ramsey, New Jersey 07446 LAWSUIT UNDER RULE 1:4-8
Re: Rio Vista Mahwah Homeowners Association and Darlington Village
Condominium Association Inc. v. Township of Mahwah, Township of
Mahwah Planning Board and Estate of John Merrill, et als.
Docket No. BER-L-4050-22
Dear Mr. Cotz:
As you know, we represent Rio Vista Mahwah Homeowners Association, Inc. and
Darlington Village Condominium Association, Inc. (collectively the “HOA” or “Plaintiffs”) in
the above-referenced matter.
We are in receipt of the Estate of John Merrill’s Answer and Counterclaim (the “Estate”
or “Defendant”) in the above action.
We write to advise you that the claims asserted therein against Plaintiffs are frivolous
pursuant to R. 1:4-8. They are not warranted by existing law or a good faith argument for the
extension, modification or reversal of existing law or the establishment of new law. These
claims do not allege any wrongful acts by the Plaintiffs as a matter of law.
The Counterclaim asserts that the Plaintiffs had knowledge of the Settlement Agreement
and that by challenging this settlement the Plaintiffs are causing harm to the Estate and its
contractual agreement for sale. That is not a cause of action. Also, the parameters of the
allegations are unknown to Plaintiffs.
Fifty-One Years of Service
4396823_2\220805
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 9 of 22 Trans ID: LCV2023241692
George J. Cotz, Esq.
October 18, 2022
Page 2
Defendant asserts that Plaintiffs interfered with Defendant’s alleged “economic
advantage,” but provides no basis as to the harm caused. Further, the Counterclaim does not
articulate, because Defendant cannot articulate, how “knowledge of a settlement agreement”
prevents a party from later challenging it. Respectfully, if the Settlement Agreement is illegal,
there are no restrictions on challenging it. Moreover, breaches of that Settlement Agreement
have been documented and are also asserted.
The Estate has not alleged a tort claim against the Plaintiffs which warrants this
Counterclaim to stand. The “Noerr-Pennington” doctrine is applicable because it has been
extended to claims of tortious interference (which the Estate is attempting to assert) that are filed
in retaliation for challenging governmental decisions, provided that there is a non-frivolous basis
for those claims. See, e.g., Structure Building Corp. v. Abella, 377 N.J. Super. 467 (App. Div.
2005); Fraser v. Bovino, 317 N.J. Super. 23 (App. Div. 1998), certif. den. 160 N.J. 476 (1999).
Plaintiffs’ Complaint alleges that among other things the Merrill Settlement Agreement
was the catalyst for the MF-1 zone change which will harm and injure the Plaintiffs and is
invalid, void or illegal as “spot zoning.” This is especially the case since its enforcement is now
sought in connection with the proposed project.
The Complaint also alleges that the Estate is in breach of the Settlement Agreement by
violating Township laws and continuing the non-conforming uses on the property which were to
cease no later than March 30, 2020. These claims are not frivolous, as a reasonable trier of fact
could find in favor of Plaintiffs. Indeed, this was already done when the MF-1 Ordinance was
deemed invalid.
We perceive Defendant’s Counterclaim to be a Strategic Lawsuit Against Public
Participation (i.e., a SLAPP suit) and an attempt to interfere with Plaintiffs’ rights to petition for
the redress of grievances. Plaintiffs’ challenge to the settlement agreement between the Estate
and the Township is a constitutionally protected activity pursuant to the First Amendment of the
Constitution of the United States, as well as Article I of the New Jersey Constitution.
Plaintiffs will steadfastly defend its constitutionally protected right to petition and will
seek to hold any persons responsible for interference with same to the maximum extent
practicable. See, e.g., LoBiondo v. Schwartz, 199 N.J. 62 (2009)(the appropriate response to a
SLAPP lawsuit is a malicious use of process claim, and where warranted, a cause of action
against the attorney who filed said action, either because of the advice of counsel defense offered
by the person who filed the SLAPP suit or where the attorney signed a frivolous pleading).
The purpose of this letter is to notify you that the Counterclaim you signed and filed on
September 14, 2022 on behalf of the Estate of John Merrill has no basis in fact or law, and there
can be no good faith basis for an extension or modification of existing law, or creation of new
law to justify the Counterclaim. Pursuant to R. 1:4-8, because the Counterclaim is frivolous,
Plaintiffs will make an application for sanctions unless it is withdrawn within 28 days of service
4396823_2\220805
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 10 of 22 Trans ID: LCV2023241692
George J. Cotz, Esq.
October 18, 2022
Page 3
of this letter. That application for sanctions will include a request for attorney’s fees incurred
while defending the instant action. Furthermore, should the Estate proceed with this
Counterclaim, Plaintiffs reserve all rights to seek damages arising from this improper filing,
which may include claims under the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1.
Finally, you have also filed a Third-Party Complaint against Christopher Hudak and
Tammy Russo-Hudak and certain other undisclosed members of the HOA. While we do not
represent those individual members and they will need to seek their own counsel, we find this
tactic of suing homeowners frankly deplorable and a transparent attempt to harass them and
file yet another SLAPP suit. Accordingly, we have also taken the liberty of asserting for those
third-party defendants now—before they have retained counsel—that the claims against them are
also frivolous, for the same reasons as set forth above (and any other reasons their individual
counsel may assert).
A complaint to any governmental authority for wrongdoing or improper activities,
especially given the long history of such conduct by the Estate and its predecessors of violating
multiple Township Ordinances over decades, is simply frivolous. A neighbor and taxpayer is
allowed to have the governmental agency investigate such a complaint. In fact, we understand
that pursuant to a prior complaint, the Township requested the Estate to take certain actions. We
also note that the Third-Party Complaints or information as to the allegations in the Third-Party
Complaints are not detailed or spelled out so as to provide any clear or particular description of
the alleged improper action. As such, such Third-Party Complaints are frivolous. We hereby
request that same be dismissed as well.
At the end of the 28-day period for you to withdraw the frivolous pleadings, we will file a
motion to dismiss and will seek recovery of all counsel fees.
Please be guided accordingly.
Very truly yours,
BEATTIE PADOVANO, LLC
Co-Counsel to Rio Vista Mahwah Homeowners
Association, Inc. and Darlington Village
Condominium Association, Inc.
By: /s/ John J. Lamb
John J. Lamb, Esq.
JJL:GCR:lb
cc: Fred Semrau, Esq. (via email) (Counsel to Twp. of Mahwah)
Michael J. Edwards, Esq. (via email) (Special Counsel to the Twp. of Mahwah)
Mark D. Madaio, Esq. (via email) (Counsel to Twp. of Mahwah Planning Board)
4396823_2\220805
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 11 of 22 Trans ID: LCV2023241692
George J. Cotz, Esq.
October 18, 2022
Page 4
Sent Via Certified Mail – Return Receipt Requested
CM-RRR #7020 3160 0000 5563 0301
To: George J. Cotz, Esq.
47 South Franklin Turnpike
Ramsey, NJ 07446
4396823_2\220805
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 12 of 22 Trans ID: LCV2023241692
EXHIBIT "B"
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 13 of 22 Trans ID: LCV2023241692
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 14 of 22 Trans ID: LCV2023241692
EXHIBIT "C"
BER-L-004050-22
BER-L-004050-22
01/12/2023
11/04/2022
12:11:43Pg
PM1 ofPg2 15Trans
of 22ID:Trans
LCV20223867996
ID: LCV2023241692
BER-L-004050-22
BER-L-004050-22
01/12/2023
11/04/2022
12:11:43Pg
PM2 ofPg2 16Trans
of 22ID:Trans
LCV20223867996
ID: LCV2023241692
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 17 of 22 Trans ID: LCV2023241692
EXHIBIT "D"
BER-L-004050-22
BER-L-004050-22
01/12/2023
01/06/2023
12:11:43 Pg
PM1 of
Pg218Trans
of 22 ID: LCV2023201732
Trans ID: LCV2023241692
BER-L-004050-22
BER-L-004050-22 01/06/2023
01/12/2023 12:11:43 Pg
PM2 of
Pg219Trans
of 22 ID: LCV2023201732
Trans ID: LCV2023241692
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 20 of 22 Trans ID: LCV2023241692
EXHIBIT "E"
BER-L-004050-22
BER-L-004050-22 12/12/2022
01/12/2023 12:11:43Pg
PM1 ofPg2 21Trans
of 22ID:Trans
LCV20224193197
ID: LCV2023241692
BER-L-004050-22
BER-L-004050-22
01/12/2023
12/12/2022
12:11:43Pg
PM2 ofPg2 22Trans
of 22ID:Trans
LCV20224193197
ID: LCV2023241692
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 1 of 2 Trans ID: LCV2023241692
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 2 of 2 Trans ID: LCV2023241692
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 1 of 2 Trans ID: LCV2023241692
John J. Lamb, Esq. (024361977)
BEATTIE PADOVANO, LLC
200 Market Street, Suite 401
Montvale, New Jersey 07645
(201) 573-1810
Attorneys for Plaintiffs,
Rio Vista Mahwah Homeowners Association, Inc.;
Darlington Village Condominium Association, Inc.;
and Third-Party Defendants,
Christopher Hudak and Tammy Russo-Hudak
RIO VISTA MAHWAH HOMEOWNERS SUPERIOR COURT OF NEW JERSEY
ASSOCIATION, INC. and DARLINGTON VILLAGE LAW DIVISION
CONDOMINIUM ASSOCIATION, INC., BERGEN COUNTY
Plaintiffs, DOCKET NO.: BER-L-4050-22
v. CIVIL ACTION
TOWNSHIP OF MAHWAH; TOWNSHIP OF
MAHWAH PLANNING BOARD; ESTATE OF CERTIFICATION OF
JOHN MERRILL; and JOHN DOES 1-10 and XYZ CURTIS MORGAN
CORPORATIONS 1-10 (fictitious names, true names
being unknown to Plaintiffs at this time),
Defendants.
ESTATE OF JOHN MERRILL
Third-Party Plaintiff,
v.
CHRISTOPHER HUDAK; TAMMY RUSSO-
HUDAK
Third-Party Defendants.
Curtis Morgan, of full age, hereby certifies as follows:
1. I am the President of the Darlington Village Condominium Association (“HOA”).
4456235_1\230019
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 2 of 2 Trans ID: LCV2023241692
2. I make this certification in support of Darlington Village Condominium’s
opposition to the Motion to Enforce Litigant’s Rights filed by the Estate of John Merrill
3. I am familiar with the settlement discussions between the parties to this litigation
concerning the Fyke Property
4. I agree with the statements made in the Lamb Certification. Though settlement
discussions are ongoing, they have not been finalized. The settlement discussions address
multiple development and land use concerns on the Fyke Property, not simply the number of
residential units to be built there.
5. The HOA has not taken the position that 28 residential units should be built on the
property; the HOA has always sought a lower number of units.
6. The HOA is continuing to negotiate in good faith and is optimistic that a
settlement can be reached, but there is no binding settlement affecting the HOA at this time.
7. The HOA has not been a party to settlement discussions between the Township of
Mahwah and the Estate. Though the HOA is aware that there have been discussions between
Mahwah and the Estate, the HOA is not privy to those discussions or the specific details of any
agreement between them.
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.
Curtis Morgan
President, Darlington Village
Condominium Association
Date: January 10, 2023
2
4456235_1\230019
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 1 of 3 Trans ID: LCV2023241692
Jason A. Cherchia, Esq. (114622014)
BEATTIE PADOVANO, LLC
200 Market Street, Suite 401
Montvale, New Jersey 07645
(201) 573-1810
Attorneys for Plaintiffs,
Rio Vista Mahwah Homeowners Association, Inc. and
Darlington Village Condominium Association, Inc.
And Third-Party Defendants,
Christopher Hudak and Tammy Russo-Hudak
RIO VISTA MAHWAH HOMEOWNERS SUPERIOR COURT OF NEW JERSEY
ASSOCIATION, INC. and DARLINGTON VILLAGE LAW DIVISION
CONDOMINIUM ASSOCIATION, INC., BERGEN COUNTY
Plaintiffs, DOCKET NO.: BER-L-4050-22
v. CIVIL ACTION
TOWNSHIP OF MAHWAH; TOWNSHIP OF
MAHWAH PLANNING BOARD; ESTATE OF ORDER
JOHN MERRILL; and JOHN DOES 1-10 and XYZ
CORPORATIONS 1-10 (fictitious names, true names
being unknown to Plaintiffs at this time),
Defendants.
ESTATE OF JOHN MERRILL
Third-Party Plaintiff,
v.
CHRISTOPHER HUDAK; TAMMY RUSSO-
HUDAK
Third-Party Defendants.
This matter having been brought before the Court on Motion of Beattie Padovano, LLC,
counsel for Plaintiffs Rio Vista Mahwah Homeowners Association, Inc. and Darlington Village
Condominium Association, Inc., and Third-Party Defendants Christopher Hudak and Tammy
4434491_1\220805
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 2 of 3 Trans ID: LCV2023241692
Russo-Hudak (John J. Lamb, Esq., appearing), on notice to George Cotz, Esq., counsel to
Defendant/Third-Party Plaintiff Estate of John Merrill for an Order dismissing the Complaint
with prejudice pursuant to R. 4:23-2(b)(3) and to Enforce Litigant’s Rights pursuant to R. 1:10-3,
and the Court having considered the moving papers, and any papers filed in opposition thereto,
and for good cause shown;
IT IS on this _________ day of January, 2023;
ORDERED that the Counterclaim and Third-Party Complaint filed by the Estate of John
Merrill is dismissed with prejudice; and it is further
ORDERED that the Court finds the Estate of John Merrill is in default of its obligations
to comply with R. 4:18-2 and its failure to comply with the Court’s Orders entered November 4,
2022 and January 6, 2023 was unjustified and that Rio Vista Mahwah Homeowners Association,
Inc., Darlington Village Condominium Association, Inc., Christopher Hudak and Tammy Russo-
Hudak shall be entitled to their reasonable expenses and attorney’s fees incurred in the filing of
this motion; and it is further
ORDERED that counsel for Plaintiffs and Third-Party Defendants shall submit an
affidavit of expenses and services concerning the preparation of its motion papers and an Order
awarding counsel fees within ____________ days of the entry of this Order; and it is further
ORDERED the Estate of John Merrill will comply with the terms of the Court’s Order
dated December 12, 2022 within ____________ days of the entry of this Order; and it is further
ORDERED the Motion to Enforce Litigant’s Rights filed by the Estate of John Merrill is
denied; and it is further
ORDERED that copies of this Order shall be served on all counsel of record via eCourts
this date.
4434491_1\220805
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 3 of 3 Trans ID: LCV2023241692
_____________________________
____ Opposed
____ Unopposed
4434491_1\220805
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 1 of 5 Trans ID: LCV2023241692
MARTIN W. KAFAFIAN (NJ, NY, DC BARS) COUNSEL TO THE FIRM
ADOLPH A. ROMEI (NJ, NY BARS) BRENDA J. STEWART (NJ BAR)
JOHN J. LAMB (NJ BAR) JAMES V. ZARRILLO (NJ, NY BARS)
ANTIMO A. DEL VECCHIO (NJ, NY, DC BARS) JEANETTE A. ODYNSKI (NJ, NY BARS)
ROBERT A. BLASS (NJ, NY BARS) COUNSELLORS AT LAW CRISTIN M. KEEGAN (NJ, NY BARS)
ARTHUR N. CHAGARIS (NJ BAR) MARIYA GONOR (NJ, NY, PA BARS)
STEVEN A. WEISFELD (NJ, NY BARS)
200 MARKET STREET, SUITE 401 BARBARA M. MARTIN (NJ BAR)
IRA E. WEINER (NJ BAR) MONTVALE, NEW JERSEY 07645
RENATA A. HELSTOSKI (NJ, NY BARS) IAN M. EASTWICK (NJ, NY BARS)
MICHAEL STERNLIEB (NJ BAR) KIMBERLEY A. BRUNNER (NJ, NY BARS)
DANIELE CERVINO (NJ, NY BARS) (201) 573-1810 JOSEPH A. DIPISA III (NJ, NY BARS)
ARTHUR M. NEISS (NJ, NY BARS) JASON A. CHERCHIA (NJ, NY BARS)
DANIEL L. STEINHAGEN (NJ, NY BARS) SHKELQIM PILINCI (NJ, NY, MT BARS)
www.beattielaw.com
MARTIN R. KAFAFIAN (NJ, NY BARS) ALEXANDER J. MORGENSTERN (NJ, NY BARS)
NEW YORK OFFICE: RALPH J. PADOVANO (1935-2016)
OF COUNSEL
99 MAIN STREET, SUITE 319 JAMES R. BEATTIE (1935-2021)
ROGER W. BRESLIN, JR. (NJ BAR)
NYACK, NEW YORK 10960
THOMAS W. DUNN (NJ BAR) (845) 512-8584
DANA B. COBB (NJ, NY BARS)
IRA J. KALTMAN (NJ, NY BARS)
MARY ELLEN B. OFFER (NJ, NY BARS) Reply to New Jersey Office
EMERY C. DUELL (NJ, NY BARS) Writer’s Direct Access
JOSEPH A. RIZZI (NJ BAR) Email: jcherchia@beattielaw.com
PATRICK J. MONAGHAN, JR. (NJ, NY BARS) Direct Dial and Fax: (201) 799-2169
January 12, 2023
Via Ecourts
Hon. Christine A. Farrington, J.S.C.
Bergen County Courthouse
10 Main Street, Room 415
Hackensack, NJ 07601
Re: Rio Vista Mahwah Homeowners Association, Inc. et al. v. Township
of Mahwah et al.
Docket No.: BER-L-4050-22
Dear Judge Farrington
Please accept this letter brief in lieu of a more formal memorandum of law in opposition
to Defendant, Estate of Merrill’s (“Estate”) Motion to Enforce Litigant’s Rights and in support of
the Motion to Dismiss the Counterclaim and Third-Party Complaint with Prejudice filed by
Plaintiffs Rio Vista Mahwah Homeowners Association and Darlington Village Condominium
Association (collectively, “HOA”), and Third-Party Defendants, Christopher Hudak and Tammy
Russo-Hudak.
1. The Motion to Enforce Must be Denied
In its Motion, the Estate asserts that it was contacted by the attorney for the Township of
Mahwah (“Mahwah”) in attempt to resolve some of the claims raised by the HOA in connection
with its challenges to the proposed development located on property owned by the Estate.
Fifty-Two Years of Service
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 2 of 5 Trans ID: LCV2023241692
Hon. Christine A. Farrington, J.S.C.
January 12, 2023
Page 2
According to the Estate, the Township conveyed that if the Estate were to agree to cap the
number of residential units at 28, then the HOA would drop its challenge. The Estate apparently
wished to accept that offer. When it conveyed its acceptance, according to Mr. Cotz’s
certification, Mahwah advised that HOA had also agreed, and that the litigation was effectively
settled. The Estate’s position is that “Plaintiff [the HOA] considered itself settled with Defendant
Estate in September.” See Cotz. Cert. ¶ 7. Based on these facts, the Estate seeks to have this
matter dismissed.
The Estate’s Motion lacks any basis in law or fact for the relief it seeks. It fails to set
forth any legal authority upon which the motion is based. Though R. 1:10-3 does allow for the
sort of relief sought, there is no judgment or court order which is necessary for relief under that
rule. See Hynes v. Clarke, 297 N.J. Super. 44, 57 (App Div. 1997). Moreover, the Estate does not
even assert any authority to enforce settlement terms against a party with whom it never entered
into a settlement. The Motion does not even attempt to establish that the Estate is in privity of
settlement with the HOA.
The Estate merely relies on the principle that settlements are encouraged and courts
should give effect to the terms of the settlement wherever possible, principles that the HOA does
not dispute. The question here is whether there is sufficient information for the Court to act with
a reasonable degree of certainty that it is enforcing a valid and complete settlement agreement.
That determination cannot be made based on the information provided in the Estate’s motion,
and therefore, the Court must answer that question in the negative. The Motion fails to provide a
copy of the alleged settlement, instead relying on hearsay—what it alleges is another party’s
representation of what the HOA was seeking in a settlement. No writing outlining the alleged
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 3 of 5 Trans ID: LCV2023241692
Hon. Christine A. Farrington, J.S.C.
January 12, 2023
Page 3
settlement offer made by the HOA or the settlement terms agreed to is provided. There is no way
for the Court to confirm the terms or that the terms presented by the Estate represent the whole
settlement. The Estate’s assertion that “Plaintiff considered itself settled with the Defendant” is
not based on any fact in the record. Instead, it is based on alleged representations made by
Mahwah’s attorney about what he apparently believed were HOA’s concerns relating to the
Estate. That is insufficient for the Court to draw any conclusion as to whether HOA believed the
matter to be settled and cannot be the basis for a motion to enforce.
As a factual matter, there is no final, enforceable settlement agreement. Though these
discussions are ongoing, and the HOA is optimistic that a mutually agreeable resolution can be
reached, they have not yet reached a conclusion. The settlement will involve a different number
than the 28 residential units the Estate claims were agreed to. Though the HOA is not privy to
discussions between Mahwah and the Estate, a letter provided by the attorney for the developer
and contract purchaser of the Estate’s property confirms that both the developer and the Estate
agreed to the construction of 25 units on the property. See Lamb Cert. Ex. B. Furthermore, the
settlement will include terms that address issues which go beyond the number of units to be
constructed on the property. Because the settlement discussions are ongoing, the HOA is
precluded from providing specific terms, but it is sufficient to state that the settlement will
include, inter alia, provisions addressing the size of the proposed unit, setbacks, certain terms to
be included in proposed ordinances, and will also contain contingencies relating to the dismissal
of this (and other related) litigation. Thus, the yet-to-be-finalized settlement will be broader than
the settlement terms which are discussed in the Estate’s Motion. Piecemeal enforcement of those
terms, without enforcement of the other terms that will be included in the settlement, would be
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 4 of 5 Trans ID: LCV2023241692
Hon. Christine A. Farrington, J.S.C.
January 12, 2023
Page 4
inequitable to the HOA and the other parties they are negotiating with. The motion to dismiss the
HOA’s pleadings in this case must be denied.
2. The Estate’s Pleadings must be dismissed for failure to provide discovery
documents.
R. 4:23-2(b)(3) permits the Court to dismiss a pleading with prejudice for failure to
comply with a Court Order. The Estate’s violation of R. 4:18-2 is plain. Prior submissions to the
Court confirm that the HOA requested a copy of the contract which it is alleged it interfered
with. The Estate failed to provide that document. The Court entered an Order on November 4,
2022 compelling production of the document. When the Estate failed to comply, the Court
further Ordered dismissal without prejudice on January 6, 2023.
The factual predicate for the dismissal has not changed: the Estate continues to be
delinquent in its obligation to provide the documents previously requested and which it was
ordered to produce. As the Court’s most recent Order advised that a motion to dismiss with
prejudice may be filed if the documents are not provided by January 11, 2023, the HOA is filing
the within Motion. Because the Estate has failed to comply with multiple Court Orders, the
Counterclaim and Third-Party Complaint must be dismissed.
3. The Estate has not complied with the Court’s Order dated December 12, 2022.
On December 12, 2022, this Court ordered the payment of fees and costs associated with
the HOA’s motion to compel production of documents. To date, the Estate has not complied with
the Order. Therefore, the HOA is entitled to relief under R. 1:10-3 in the form of an Order
compelling the Estate’s compliance with the prior Order.
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 5 of 5 Trans ID: LCV2023241692
Hon. Christine A. Farrington, J.S.C.
January 12, 2023
Page 5
The HOA is requesting oral argument on the Motion filed by Defendant. The Court’s
courtesies are appreciated.
Respectfully submitted,
/s/ Jason A. Cherchia
Jason A. Cherchia
Encl.
Cc: George Cotz, Esq.
Fred Semrau, Esq.
Mark Madaio, Esq.
Michael Edwards, Esq.
Client
Preview
BER-L-004050-22 01/12/2023 12:11:43 PM Pg 1 of 2 Trans ID: LCV2023241692 John J. Lamb, Esq. (024361977) BEATTIE PADOVANO, LLC 200 Market Street, Suite 401 Montvale, New Jersey 07645 (201) 573-1810 Attorneys for Plaintiffs, Rio Vista Mahwah Homeowners Association, Inc. and Darlington Village Condominium Association, Inc. And Third-Party Defendants, Christopher Hudak and Tammy Russo-Hudak RIO VISTA MAHWAH HOMEOWNERS SUPERIOR COURT OF NEW JERSEY ASSOCIATION, INC. and DARLINGTON VILLAGE LAW DIVISION CONDOMINIUM ASSOCIATION, INC., BERGEN COUNTY Plaintiffs, DOCKET NO.: BER-L-4050-22 v. CIVIL ACTION TOWNSHIP OF MAHWAH; TOWNSHIP OF MAHWAH PLANNING BOARD; ESTATE OF NOTICE OF CROSS-MOTIONS TO JOHN MERRILL; and JOHN DOES 1-10 and XYZ DISMISS PURSUANT TO R. 4:23- CORPORATIONS 1-10 (fictitious names, true names 2(b)(3) AND ENFORCE LITIGANT’S being unknown to Plaintiffs at this time), RIGHTS PURSUANT TO R. 1:10-3 Defendants. ESTATE OF JOHN MERRILL Third-Party Plaintiff, v. CHRISTOPHER HUDAK; TAMMY RUSSO- HUDAK Third-Party Defendants. To: George J. Cotz, Esq. 47 S Franklin Turnpike Ramsey, NJ 07446-2545 Counsel for Defendant/Third-Party Plaintiff, Estate of John Merrill 4434450_1\220805 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 2 of 2 Trans ID: LCV2023241692 PLEASE TAKE NOTICE that on Friday, January 20, 2023, the undersigned, Beattie Padovano, LLC, attorneys for Plaintiffs Rio Vista Mahwah Homeowners Association, Inc. and Darlington Village Condominium Association, Inc., and Third-Party Defendants Christopher Hudak and Tammy Russo-Hudak shall apply before the Superior Court of New Jersey, Law Division, Bergen County Courthouse, Hackensack, New Jersey, for an Order dismissing the Counterclaim and Third Party-Complaint filed by the Estate of John Merrill with prejudice pursuant to R. 4:23-2(b)(3) and for expenses and attorneys fees incurred in the preparation of this motion, and to Enforce Litigant’s Rights pursuant to R. 1:10-3 for failure to comply with the Court’s Order dated December 12, 2022 and granting such other relief as this Court deems fair and just. PLEASE TAKE FURTHER NOTICE that, in support of this motion, Plaintiffs shall rely upon the John J. Lamb, Esq., with exhibits, simultaneously filed herewith. BEATTIE PADOVANO, LLC Attorneys Rio Vista Mahwah Homeowners Association, Inc. and Darlington Village Condominium Association, Inc. and Third- Party Defendants Christopher Hudak and Tammy Russo-Hudak. By:__/s/ John J. Lamb __ John J. Lamb, Esq. Dated: January 12, 2023 4434450_1\220805 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 1 of 22 Trans ID: LCV2023241692 John J. Lamb, Esq. (024361977) BEATTIE PADOVANO, LLC 200 Market Street, Suite 401 Montvale, New Jersey 07645 (201) 573-1810 Attorneys for Plaintiffs, Rio Vista Mahwah Homeowners Association, Inc.; Darlington Village Condominium Association, Inc.; and Third-Party Defendants, Christopher Hudak and Tammy Russo-Hudak RIO VISTA MAHWAH HOMEOWNERS SUPERIOR COURT OF NEW JERSEY ASSOCIATION, INC. and DARLINGTON VILLAGE LAW DIVISION CONDOMINIUM ASSOCIATION, INC., BERGEN COUNTY Plaintiffs, DOCKET NO.: BER-L-4050-22 v. CIVIL ACTION TOWNSHIP OF MAHWAH; TOWNSHIP OF MAHWAH PLANNING BOARD; ESTATE OF CERTIFICATION OF JOHN MERRILL; and JOHN DOES 1-10 and XYZ JOHN J. LAMB, ESQ. CORPORATIONS 1-10 (fictitious names, true names being unknown to Plaintiffs at this time), Defendants. ESTATE OF JOHN MERRILL Third-Party Plaintiff, v. CHRISTOPHER HUDAK; TAMMY RUSSO- HUDAK Third-Party Defendants. John J. Lamb, Esq., of full age, hereby certifies as follows: 4456235_1\230019 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 2 of 22 Trans ID: LCV2023241692 1. I am an attorney at law of the State of New Jersey and am a member of the law firm of Beattie Padovano, LLC, which is counsel to the Plaintiffs, Rio Vista Mahwah Homeowners Association and Darlington Village Condominium Association, Inc., and Third- Party Defendants, Christopher Hudak and Tammy Russo-Hudak, who are members of the Rio Vista Mahwah Homeowners Association, Inc and Darlington Village Condominium Association. 2. Rio Vista Mahwah Homeowners Association, Inc. is a non-profit corporation of the State of New Jersey and a community homeowners’ association consisting of 459 homes (hereinafter “RVMHA”). 3. Darlington Village Condominium Association, Inc. (hereinafter “DVCA”) is a non-profit corporation of the State of New Jersey which is also comprised of 62 patio home condominiums which, in addition to being part of the DVCA, is also part of the RVMHA. 4. For ease of reference, the RVMHA and DVCA are hereinafter collectively referred to as the “HOA.” 5. I make this Certification in opposition to the Estate of John Merrill's Motion to Enforce Litigant’s Rights which claims that there is a settlement with the Plaintiff which it seeks to enforce, presumably to avoid dismissal of its Counterclaim and Third-Party Complaint. This Certification is also made in support of Plaintiffs’ and Third-Party Defendants’ Cross-Motions to Dismiss with Prejudice pursuant to R. 4:23-5(b)(3) and to Enforce Litigant’s Rights. 6. Plaintiff HOA, in this action, is seeking to invalidate an agreement between the Township of Mahwah (hereinafter the “Township”) and John Merrill (who is succeeded by the Estate of John Merrill after his passing) (hereinafter the “Estate” or “Defendant Estate”). 2 4456235_1\230019 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 3 of 22 Trans ID: LCV2023241692 7. As part of this action, the Estate filed an Answer and responsive pleading which included a Counterclaim against the HOA and a Third-Party Complaint against certain individual homeowners who are members of the HOA. 8. It is our legal position the Defendant Estate’s Counterclaim and Third-Party Complaint are frivolous and therefore sent the Defendant Estate a Frivolous Lawsuit Notice more than 25 days ago. A copy is attached hereto and made a part hereof as Exhibit “A.” 9. The parties to this action continue to seek a settlement of the issue of an affordable housing project on the property owned by the Estate, called the Fyke Property. 10. To that end, Plaintiff HOA prepared a draft Settlement Agreement with the HOA and Township of Mahwah (hereinafter “Township”) and Fyke Brook Estates, LLC, the purchaser from the Estate and current proposed Developer of the Fyke Property (hereinafter the “Developer”). 11. That draft Settlement Agreement contained a Consent of the Estate as property owner, and the Estate has acknowledged in its supporting papers that it is aware of the proposed Settlement Agreement as Plaintiff has been negotiating with the Developer and Township. 12. I have been the attorney principally involved in these negotiations. 13. But the negotiations were going very slowly, at least initially. I personally prepared the draft Settlement Agreement and sent the draft to the Township’s attorney and the Developer’s attorney on September 30, 2022. But we did not get any response from the Estate's purchaser, the Developer, for more than two months. 14. During this time, the HOA, as an association, was often asked to advise prospective buyers or their lenders of pending lawsuits in order to evaluate the purchase or whether make the loan in a community where there was a lawsuit. 3 4456235_1\230019 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 4 of 22 Trans ID: LCV2023241692 15. While the Plaintiff 's affirmative claims have been put on hold and are not being litigated (but we are hopefully awaiting a settlement as noted in several case management conferences with the Honorable Christine A. Farrington, J.S.C.), dismissal of the Estate’s Counterclaim and Third-Party Complaint was necessary in order avoid poisoning unrelated transactions of real property within the HOA. 16. Plaintiff HOA filed a Motion to Dismiss for Defendant Estate’s failure to produce documents referenced in the Complaint pursuant to R. 4:18-2. That Motion was granted, and the Defendant Estate’s Counterclaim and Third-Party Complaint were dismissed without prejudice. 17. The Defendant-Counterclaimant–Third-Party Plaintiff Estate contacted my office to obtain an adjournment of the Motion to Dismiss, but only after the time period to file opposition expired. 18. We requested that the Estate advise of the reasons for the extension, as we wanted to cooperate if there was a legitimate reason to grant the extension. 19. However, what was proffered was that the entire action was already settled. That was not true—even if that is what the HOA ultimately wanted. 20. While progress was indeed being made with the completion of the settlement agreement, recent discussions reveal that the parties remain at an impasse and require some movement in order to reach a resolution. 21. While Plaintiff HOA continues to be optimistic there will eventually be a settlement, which will include the end of the current action, and this opposition should not be construed as signaling any intent to the contrary, that simply has not happened. 22. There is no signed Settlement Agreement that is binding. And even if it is signed, there are numerous contingencies which will take some time to be satisfied. That is why the 4 4456235_1\230019 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 5 of 22 Trans ID: LCV2023241692 HOA has no choice to press for the dismissal of the Estates frivolous Counterclaim and Third- Party Complaint in the interim. 23. The Estate's Motion to Enforce Litigants’ rights attaches no signed settlement agreement. 24. The Estate’s motion implicitly admits that it is not party to any settlement agreement with the HOA. It is only party to an alleged settlement with the Township of Mahwah. 25. The Settlement Agreement which the HOA is negotiating will, contrary to the Estate’s suggestion, involve more than just the number of units to be constructed on the property, including (but not limited to) setbacks, size of units, and certain terms to be included in proposed ordinances. It will also include contingencies that make dismissal now inappropriate. Because the settlement negotiations are ongoing the specific terms being considered are not disclosed to the Court here. However, it is important to understand that the settlement which the Estate seeks to enforce (even assuming it is enforceable) covers more than just the number of residential units to be constructed. 26. The Plaintiff did get notice that the Estate and Township—but not involving the HOA—signed a statement within the last few months that states that whether or not the settlement did take place, the Estate would agree to build 25 units on the Property, upon information and belief. A copy of a letter from the developer’s attorney confirming the commitment of the developer and property owner to the construction of 25 residential units is attached hereto as Exhibit “B.” 27. This apparently allowed the Township to continue to evaluate the sufficiency of the Township Affordable Housing Plan pending in court. Again, the HOA was not a party to that document or surrounding discussions. 5 4456235_1\230019 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 6 of 22 Trans ID: LCV2023241692 28. This Certification is made in opposition to the Defendant Estate's claim that there is a settlement with the Plaintiff which it seeks to enforce. 29. Plaintiffs and Third-Party Defendants continue to seek the dismissal of the frivolous Counterclaim and Third-Party Complaint irrespective of the surrounding settlement discussions which will hopefully eventually be concluded. 30. As of the time of this filing, Defendant, Estate of Merrill has not provided the documents required by R. 4:18-2, this Court’s Order dated November 4, 2022 and January 6, 2023. Copies of the aforementioned orders are attached hereto as Exhibit “C” and Exhibit “D,” respectively. 31. Dismissal of the Counterclaim and Third-Party Complaint with prejudice is warranted pursuant to R. 4:23-2(b)(3). 32. To date, the Estate has not complied with the Court’s Order dated December 12, 2022, which required the Estate to compensate the HOA in connection with the HOA’s motion to compel. The HOA is entitled to an order compelling compliance with the December 12, 2022 Order attached hereto as Exhibit “E.” 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. John J. Lamb, Esq. Date: January 12, 2023 6 4456235_1\230019 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 7 of 22 Trans ID: LCV2023241692 EXHIBIT "A" BER-L-004050-22 01/12/2023 12:11:43 PM Pg 8 of 22 Trans ID: LCV2023241692 MARTIN W. KAFAFIAN (NJ, NY, DC BARS) COUNSEL TO THE FIRM ADOLPH A. ROMEI (NJ, NY BARS) BRENDA J. STEWART (NJ BAR) JOHN J. LAMB (NJ BAR) JAMES V. ZARRILLO (NJ, NY BARS) ANTIMO A. DEL VECCHIO (NJ, NY, DC BARS) JEANETTE A. ODYNSKI (NJ, NY BARS) ROBERT A. BLASS (NJ, NY BARS) COUNSELLORS AT LAW CRISTIN M. KEEGAN (NJ, NY BARS) ARTHUR N. CHAGARIS (NJ BAR) MARIYA GONOR (NJ, NY, PA BARS) STEVEN A. WEISFELD (NJ, NY BARS) 200 MARKET STREET, SUITE 401 BARBARA M. MARTIN (NJ BAR) IRA E. WEINER (NJ BAR) MONTVALE, NEW JERSEY 07645 RENATA A. HELSTOSKI (NJ, NY BARS) IAN M. EASTWICK (NJ, NY BARS) MICHAEL STERNLIEB (NJ BAR) KIMBERLEY A. BRUNNER (NJ, NY BARS) DANIELE CERVINO (NJ, NY BARS) (201) 573-1810 JOSEPH A. DIPISA III (NJ, NY BARS) ARTHUR M. NEISS (NJ, NY BARS) JASON A. CHERCHIA (NJ, NY BARS) DANIEL L. STEINHAGEN (NJ, NY BARS) GIANNA C. RICCOBONI (NJ, NY BARS) www.beattielaw.com MARTIN R. KAFAFIAN (NJ, NY BARS) SHKELQIM PILINCI (NJ, NY, MT BARS) NEW YORK OFFICE: RALPH J. PADOVANO (1935-2016) OF COUNSEL 99 MAIN STREET, SUITE 319 JAMES R. BEATTIE (1935-2021) ROGER W. BRESLIN, JR. (NJ BAR) NYACK, NEW YORK 10960 THOMAS W. DUNN (NJ BAR) (845) 512-8584 DANA B. COBB (NJ, NY BARS) IRA J. KALTMAN (NJ, NY BARS) MARY ELLEN B. OFFER (NJ, NY BARS) EMERY C. DUELL (NJ, NY BARS) Reply to New Jersey Office JOSEPH A. RIZZI (NJ BAR) Writer’s Direct Access PATRICK J. MONAGHAN, JR. (NJ, NY BARS) Email: jlamb@beattielaw.com Direct Dial and Fax: (201) 799-2105 October 18, 2022 Via Email, Regular Mail and Certified Mail George J. Cotz Esq. 47 South Franklin Turnpike NOTICE OF FRIVOLOUS Ramsey, New Jersey 07446 LAWSUIT UNDER RULE 1:4-8 Re: Rio Vista Mahwah Homeowners Association and Darlington Village Condominium Association Inc. v. Township of Mahwah, Township of Mahwah Planning Board and Estate of John Merrill, et als. Docket No. BER-L-4050-22 Dear Mr. Cotz: As you know, we represent Rio Vista Mahwah Homeowners Association, Inc. and Darlington Village Condominium Association, Inc. (collectively the “HOA” or “Plaintiffs”) in the above-referenced matter. We are in receipt of the Estate of John Merrill’s Answer and Counterclaim (the “Estate” or “Defendant”) in the above action. We write to advise you that the claims asserted therein against Plaintiffs are frivolous pursuant to R. 1:4-8. They are not warranted by existing law or a good faith argument for the extension, modification or reversal of existing law or the establishment of new law. These claims do not allege any wrongful acts by the Plaintiffs as a matter of law. The Counterclaim asserts that the Plaintiffs had knowledge of the Settlement Agreement and that by challenging this settlement the Plaintiffs are causing harm to the Estate and its contractual agreement for sale. That is not a cause of action. Also, the parameters of the allegations are unknown to Plaintiffs. Fifty-One Years of Service 4396823_2\220805 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 9 of 22 Trans ID: LCV2023241692 George J. Cotz, Esq. October 18, 2022 Page 2 Defendant asserts that Plaintiffs interfered with Defendant’s alleged “economic advantage,” but provides no basis as to the harm caused. Further, the Counterclaim does not articulate, because Defendant cannot articulate, how “knowledge of a settlement agreement” prevents a party from later challenging it. Respectfully, if the Settlement Agreement is illegal, there are no restrictions on challenging it. Moreover, breaches of that Settlement Agreement have been documented and are also asserted. The Estate has not alleged a tort claim against the Plaintiffs which warrants this Counterclaim to stand. The “Noerr-Pennington” doctrine is applicable because it has been extended to claims of tortious interference (which the Estate is attempting to assert) that are filed in retaliation for challenging governmental decisions, provided that there is a non-frivolous basis for those claims. See, e.g., Structure Building Corp. v. Abella, 377 N.J. Super. 467 (App. Div. 2005); Fraser v. Bovino, 317 N.J. Super. 23 (App. Div. 1998), certif. den. 160 N.J. 476 (1999). Plaintiffs’ Complaint alleges that among other things the Merrill Settlement Agreement was the catalyst for the MF-1 zone change which will harm and injure the Plaintiffs and is invalid, void or illegal as “spot zoning.” This is especially the case since its enforcement is now sought in connection with the proposed project. The Complaint also alleges that the Estate is in breach of the Settlement Agreement by violating Township laws and continuing the non-conforming uses on the property which were to cease no later than March 30, 2020. These claims are not frivolous, as a reasonable trier of fact could find in favor of Plaintiffs. Indeed, this was already done when the MF-1 Ordinance was deemed invalid. We perceive Defendant’s Counterclaim to be a Strategic Lawsuit Against Public Participation (i.e., a SLAPP suit) and an attempt to interfere with Plaintiffs’ rights to petition for the redress of grievances. Plaintiffs’ challenge to the settlement agreement between the Estate and the Township is a constitutionally protected activity pursuant to the First Amendment of the Constitution of the United States, as well as Article I of the New Jersey Constitution. Plaintiffs will steadfastly defend its constitutionally protected right to petition and will seek to hold any persons responsible for interference with same to the maximum extent practicable. See, e.g., LoBiondo v. Schwartz, 199 N.J. 62 (2009)(the appropriate response to a SLAPP lawsuit is a malicious use of process claim, and where warranted, a cause of action against the attorney who filed said action, either because of the advice of counsel defense offered by the person who filed the SLAPP suit or where the attorney signed a frivolous pleading). The purpose of this letter is to notify you that the Counterclaim you signed and filed on September 14, 2022 on behalf of the Estate of John Merrill has no basis in fact or law, and there can be no good faith basis for an extension or modification of existing law, or creation of new law to justify the Counterclaim. Pursuant to R. 1:4-8, because the Counterclaim is frivolous, Plaintiffs will make an application for sanctions unless it is withdrawn within 28 days of service 4396823_2\220805 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 10 of 22 Trans ID: LCV2023241692 George J. Cotz, Esq. October 18, 2022 Page 3 of this letter. That application for sanctions will include a request for attorney’s fees incurred while defending the instant action. Furthermore, should the Estate proceed with this Counterclaim, Plaintiffs reserve all rights to seek damages arising from this improper filing, which may include claims under the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1. Finally, you have also filed a Third-Party Complaint against Christopher Hudak and Tammy Russo-Hudak and certain other undisclosed members of the HOA. While we do not represent those individual members and they will need to seek their own counsel, we find this tactic of suing homeowners frankly deplorable and a transparent attempt to harass them and file yet another SLAPP suit. Accordingly, we have also taken the liberty of asserting for those third-party defendants now—before they have retained counsel—that the claims against them are also frivolous, for the same reasons as set forth above (and any other reasons their individual counsel may assert). A complaint to any governmental authority for wrongdoing or improper activities, especially given the long history of such conduct by the Estate and its predecessors of violating multiple Township Ordinances over decades, is simply frivolous. A neighbor and taxpayer is allowed to have the governmental agency investigate such a complaint. In fact, we understand that pursuant to a prior complaint, the Township requested the Estate to take certain actions. We also note that the Third-Party Complaints or information as to the allegations in the Third-Party Complaints are not detailed or spelled out so as to provide any clear or particular description of the alleged improper action. As such, such Third-Party Complaints are frivolous. We hereby request that same be dismissed as well. At the end of the 28-day period for you to withdraw the frivolous pleadings, we will file a motion to dismiss and will seek recovery of all counsel fees. Please be guided accordingly. Very truly yours, BEATTIE PADOVANO, LLC Co-Counsel to Rio Vista Mahwah Homeowners Association, Inc. and Darlington Village Condominium Association, Inc. By: /s/ John J. Lamb John J. Lamb, Esq. JJL:GCR:lb cc: Fred Semrau, Esq. (via email) (Counsel to Twp. of Mahwah) Michael J. Edwards, Esq. (via email) (Special Counsel to the Twp. of Mahwah) Mark D. Madaio, Esq. (via email) (Counsel to Twp. of Mahwah Planning Board) 4396823_2\220805 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 11 of 22 Trans ID: LCV2023241692 George J. Cotz, Esq. October 18, 2022 Page 4 Sent Via Certified Mail – Return Receipt Requested CM-RRR #7020 3160 0000 5563 0301 To: George J. Cotz, Esq. 47 South Franklin Turnpike Ramsey, NJ 07446 4396823_2\220805 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 12 of 22 Trans ID: LCV2023241692 EXHIBIT "B" BER-L-004050-22 01/12/2023 12:11:43 PM Pg 13 of 22 Trans ID: LCV2023241692 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 14 of 22 Trans ID: LCV2023241692 EXHIBIT "C" BER-L-004050-22 BER-L-004050-22 01/12/2023 11/04/2022 12:11:43Pg PM1 ofPg2 15Trans of 22ID:Trans LCV20223867996 ID: LCV2023241692 BER-L-004050-22 BER-L-004050-22 01/12/2023 11/04/2022 12:11:43Pg PM2 ofPg2 16Trans of 22ID:Trans LCV20223867996 ID: LCV2023241692 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 17 of 22 Trans ID: LCV2023241692 EXHIBIT "D" BER-L-004050-22 BER-L-004050-22 01/12/2023 01/06/2023 12:11:43 Pg PM1 of Pg218Trans of 22 ID: LCV2023201732 Trans ID: LCV2023241692 BER-L-004050-22 BER-L-004050-22 01/06/2023 01/12/2023 12:11:43 Pg PM2 of Pg219Trans of 22 ID: LCV2023201732 Trans ID: LCV2023241692 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 20 of 22 Trans ID: LCV2023241692 EXHIBIT "E" BER-L-004050-22 BER-L-004050-22 12/12/2022 01/12/2023 12:11:43Pg PM1 ofPg2 21Trans of 22ID:Trans LCV20224193197 ID: LCV2023241692 BER-L-004050-22 BER-L-004050-22 01/12/2023 12/12/2022 12:11:43Pg PM2 ofPg2 22Trans of 22ID:Trans LCV20224193197 ID: LCV2023241692 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 1 of 2 Trans ID: LCV2023241692 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 2 of 2 Trans ID: LCV2023241692 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 1 of 2 Trans ID: LCV2023241692 John J. Lamb, Esq. (024361977) BEATTIE PADOVANO, LLC 200 Market Street, Suite 401 Montvale, New Jersey 07645 (201) 573-1810 Attorneys for Plaintiffs, Rio Vista Mahwah Homeowners Association, Inc.; Darlington Village Condominium Association, Inc.; and Third-Party Defendants, Christopher Hudak and Tammy Russo-Hudak RIO VISTA MAHWAH HOMEOWNERS SUPERIOR COURT OF NEW JERSEY ASSOCIATION, INC. and DARLINGTON VILLAGE LAW DIVISION CONDOMINIUM ASSOCIATION, INC., BERGEN COUNTY Plaintiffs, DOCKET NO.: BER-L-4050-22 v. CIVIL ACTION TOWNSHIP OF MAHWAH; TOWNSHIP OF MAHWAH PLANNING BOARD; ESTATE OF CERTIFICATION OF JOHN MERRILL; and JOHN DOES 1-10 and XYZ CURTIS MORGAN CORPORATIONS 1-10 (fictitious names, true names being unknown to Plaintiffs at this time), Defendants. ESTATE OF JOHN MERRILL Third-Party Plaintiff, v. CHRISTOPHER HUDAK; TAMMY RUSSO- HUDAK Third-Party Defendants. Curtis Morgan, of full age, hereby certifies as follows: 1. I am the President of the Darlington Village Condominium Association (“HOA”). 4456235_1\230019 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 2 of 2 Trans ID: LCV2023241692 2. I make this certification in support of Darlington Village Condominium’s opposition to the Motion to Enforce Litigant’s Rights filed by the Estate of John Merrill 3. I am familiar with the settlement discussions between the parties to this litigation concerning the Fyke Property 4. I agree with the statements made in the Lamb Certification. Though settlement discussions are ongoing, they have not been finalized. The settlement discussions address multiple development and land use concerns on the Fyke Property, not simply the number of residential units to be built there. 5. The HOA has not taken the position that 28 residential units should be built on the property; the HOA has always sought a lower number of units. 6. The HOA is continuing to negotiate in good faith and is optimistic that a settlement can be reached, but there is no binding settlement affecting the HOA at this time. 7. The HOA has not been a party to settlement discussions between the Township of Mahwah and the Estate. Though the HOA is aware that there have been discussions between Mahwah and the Estate, the HOA is not privy to those discussions or the specific details of any agreement between them. 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. Curtis Morgan President, Darlington Village Condominium Association Date: January 10, 2023 2 4456235_1\230019 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 1 of 3 Trans ID: LCV2023241692 Jason A. Cherchia, Esq. (114622014) BEATTIE PADOVANO, LLC 200 Market Street, Suite 401 Montvale, New Jersey 07645 (201) 573-1810 Attorneys for Plaintiffs, Rio Vista Mahwah Homeowners Association, Inc. and Darlington Village Condominium Association, Inc. And Third-Party Defendants, Christopher Hudak and Tammy Russo-Hudak RIO VISTA MAHWAH HOMEOWNERS SUPERIOR COURT OF NEW JERSEY ASSOCIATION, INC. and DARLINGTON VILLAGE LAW DIVISION CONDOMINIUM ASSOCIATION, INC., BERGEN COUNTY Plaintiffs, DOCKET NO.: BER-L-4050-22 v. CIVIL ACTION TOWNSHIP OF MAHWAH; TOWNSHIP OF MAHWAH PLANNING BOARD; ESTATE OF ORDER JOHN MERRILL; and JOHN DOES 1-10 and XYZ CORPORATIONS 1-10 (fictitious names, true names being unknown to Plaintiffs at this time), Defendants. ESTATE OF JOHN MERRILL Third-Party Plaintiff, v. CHRISTOPHER HUDAK; TAMMY RUSSO- HUDAK Third-Party Defendants. This matter having been brought before the Court on Motion of Beattie Padovano, LLC, counsel for Plaintiffs Rio Vista Mahwah Homeowners Association, Inc. and Darlington Village Condominium Association, Inc., and Third-Party Defendants Christopher Hudak and Tammy 4434491_1\220805 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 2 of 3 Trans ID: LCV2023241692 Russo-Hudak (John J. Lamb, Esq., appearing), on notice to George Cotz, Esq., counsel to Defendant/Third-Party Plaintiff Estate of John Merrill for an Order dismissing the Complaint with prejudice pursuant to R. 4:23-2(b)(3) and to Enforce Litigant’s Rights pursuant to R. 1:10-3, and the Court having considered the moving papers, and any papers filed in opposition thereto, and for good cause shown; IT IS on this _________ day of January, 2023; ORDERED that the Counterclaim and Third-Party Complaint filed by the Estate of John Merrill is dismissed with prejudice; and it is further ORDERED that the Court finds the Estate of John Merrill is in default of its obligations to comply with R. 4:18-2 and its failure to comply with the Court’s Orders entered November 4, 2022 and January 6, 2023 was unjustified and that Rio Vista Mahwah Homeowners Association, Inc., Darlington Village Condominium Association, Inc., Christopher Hudak and Tammy Russo- Hudak shall be entitled to their reasonable expenses and attorney’s fees incurred in the filing of this motion; and it is further ORDERED that counsel for Plaintiffs and Third-Party Defendants shall submit an affidavit of expenses and services concerning the preparation of its motion papers and an Order awarding counsel fees within ____________ days of the entry of this Order; and it is further ORDERED the Estate of John Merrill will comply with the terms of the Court’s Order dated December 12, 2022 within ____________ days of the entry of this Order; and it is further ORDERED the Motion to Enforce Litigant’s Rights filed by the Estate of John Merrill is denied; and it is further ORDERED that copies of this Order shall be served on all counsel of record via eCourts this date. 4434491_1\220805 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 3 of 3 Trans ID: LCV2023241692 _____________________________ ____ Opposed ____ Unopposed 4434491_1\220805 BER-L-004050-22 01/12/2023 12:11:43 PM Pg 1 of 5 Trans ID: LCV2023241692 MARTIN W. KAFAFIAN (NJ, NY, DC BARS) COUNSEL TO THE FIRM ADOLPH A. ROMEI (NJ, NY BARS) BRENDA J. STEWART (NJ BAR) JOHN J. LAMB (NJ BAR) JAMES V. ZARRILLO (NJ, NY BARS) ANTIMO A. DEL VECCHIO (NJ, NY, DC BARS) JEANETTE A. ODYNSKI (NJ, NY BARS) ROBERT A. BLASS (NJ, NY BARS) COUNSELLORS AT LAW CRISTIN M. KEEGAN (NJ, NY BARS) ARTHUR N. CHAGARIS (NJ BAR) MARIYA GONOR (NJ, NY, PA BARS) STEVEN A. WEISFELD (NJ, NY BARS) 200 MARKET STREET, SUITE 401 BARBARA M. MARTIN (NJ BAR) IRA E. WEINER (NJ BAR) MONTVALE, NEW JERSEY 07645 RENATA A. HELSTOSKI (NJ, NY BARS) IAN M. EASTWICK (NJ, NY BARS) MICHAEL STERNLIEB (NJ BAR) KIMBERLEY A. BRUNNER (NJ, NY BARS) DANIELE CERVINO (NJ, NY BARS) (201) 573-1810 JOSEPH A. DIPISA III (NJ, NY BARS) ARTHUR M. NEISS (NJ, NY BARS) JASON A. CHERCHIA (NJ, NY BARS) DANIEL L. STEINHAGEN (NJ, NY BARS) SHKELQIM PILINCI (NJ, NY, MT BARS) www.beattielaw.com MARTIN R. KAFAFIAN (NJ, NY BARS) ALEXANDER J. MORGENSTERN (NJ, NY BARS) NEW YORK OFFICE: RALPH J. PADOVANO (1935-2016) OF COUNSEL 99 MAIN STREET, SUITE 319 JAMES R. BEATTIE (1935-2021) ROGER W. BRESLIN, JR. (NJ BAR) NYACK, NEW YORK 10960 THOMAS W. DUNN (NJ BAR) (845) 512-8584 DANA B. COBB (NJ, NY BARS) IRA J. KALTMAN (NJ, NY BARS) MARY ELLEN B. OFFER (NJ, NY BARS) Reply to New Jersey Office EMERY C. DUELL (NJ, NY BARS) Writer’s Direct Access JOSEPH A. RIZZI (NJ BAR) Email: jcherchia@beattielaw.com PATRICK J. MONAGHAN, JR. (NJ, NY BARS) Direct Dial and Fax: (201) 799-2169 January 12, 2023 Via Ecourts Hon. Christine A. Farrington, J.S.C. Bergen County Courthouse 10 Main Street, Room 415 Hackensack, NJ 07601 Re: Rio Vista Mahwah Homeowners Association, Inc. et al. v. Township of Mahwah et al. Docket No.: BER-L-4050-22 Dear Judge Farrington Please accept this letter brief in lieu of a more formal memorandum of law in opposition to Defendant, Estate of Merrill’s (“Estate”) Motion to Enforce Litigant’s Rights and in support of the Motion to Dismiss the Counterclaim and Third-Party Complaint with Prejudice filed by Plaintiffs Rio Vista Mahwah Homeowners Association and Darlington Village Condominium Association (collectively, “HOA”), and Third-Party Defendants, Christopher Hudak and Tammy Russo-Hudak. 1. The Motion to Enforce Must be Denied In its Motion, the Estate asserts that it was contacted by the attorney for the Township of Mahwah (“Mahwah”) in attempt to resolve some of the claims raised by the HOA in connection with its challenges to the proposed development located on property owned by the Estate. Fifty-Two Years of Service BER-L-004050-22 01/12/2023 12:11:43 PM Pg 2 of 5 Trans ID: LCV2023241692 Hon. Christine A. Farrington, J.S.C. January 12, 2023 Page 2 According to the Estate, the Township conveyed that if the Estate were to agree to cap the number of residential units at 28, then the HOA would drop its challenge. The Estate apparently wished to accept that offer. When it conveyed its acceptance, according to Mr. Cotz’s certification, Mahwah advised that HOA had also agreed, and that the litigation was effectively settled. The Estate’s position is that “Plaintiff [the HOA] considered itself settled with Defendant Estate in September.” See Cotz. Cert. ¶ 7. Based on these facts, the Estate seeks to have this matter dismissed. The Estate’s Motion lacks any basis in law or fact for the relief it seeks. It fails to set forth any legal authority upon which the motion is based. Though R. 1:10-3 does allow for the sort of relief sought, there is no judgment or court order which is necessary for relief under that rule. See Hynes v. Clarke, 297 N.J. Super. 44, 57 (App Div. 1997). Moreover, the Estate does not even assert any authority to enforce settlement terms against a party with whom it never entered into a settlement. The Motion does not even attempt to establish that the Estate is in privity of settlement with the HOA. The Estate merely relies on the principle that settlements are encouraged and courts should give effect to the terms of the settlement wherever possible, principles that the HOA does not dispute. The question here is whether there is sufficient information for the Court to act with a reasonable degree of certainty that it is enforcing a valid and complete settlement agreement. That determination cannot be made based on the information provided in the Estate’s motion, and therefore, the Court must answer that question in the negative. The Motion fails to provide a copy of the alleged settlement, instead relying on hearsay—what it alleges is another party’s representation of what the HOA was seeking in a settlement. No writing outlining the alleged BER-L-004050-22 01/12/2023 12:11:43 PM Pg 3 of 5 Trans ID: LCV2023241692 Hon. Christine A. Farrington, J.S.C. January 12, 2023 Page 3 settlement offer made by the HOA or the settlement terms agreed to is provided. There is no way for the Court to confirm the terms or that the terms presented by the Estate represent the whole settlement. The Estate’s assertion that “Plaintiff considered itself settled with the Defendant” is not based on any fact in the record. Instead, it is based on alleged representations made by Mahwah’s attorney about what he apparently believed were HOA’s concerns relating to the Estate. That is insufficient for the Court to draw any conclusion as to whether HOA believed the matter to be settled and cannot be the basis for a motion to enforce. As a factual matter, there is no final, enforceable settlement agreement. Though these discussions are ongoing, and the HOA is optimistic that a mutually agreeable resolution can be reached, they have not yet reached a conclusion. The settlement will involve a different number than the 28 residential units the Estate claims were agreed to. Though the HOA is not privy to discussions between Mahwah and the Estate, a letter provided by the attorney for the developer and contract purchaser of the Estate’s property confirms that both the developer and the Estate agreed to the construction of 25 units on the property. See Lamb Cert. Ex. B. Furthermore, the settlement will include terms that address issues which go beyond the number of units to be constructed on the property. Because the settlement discussions are ongoing, the HOA is precluded from providing specific terms, but it is sufficient to state that the settlement will include, inter alia, provisions addressing the size of the proposed unit, setbacks, certain terms to be included in proposed ordinances, and will also contain contingencies relating to the dismissal of this (and other related) litigation. Thus, the yet-to-be-finalized settlement will be broader than the settlement terms which are discussed in the Estate’s Motion. Piecemeal enforcement of those terms, without enforcement of the other terms that will be included in the settlement, would be BER-L-004050-22 01/12/2023 12:11:43 PM Pg 4 of 5 Trans ID: LCV2023241692 Hon. Christine A. Farrington, J.S.C. January 12, 2023 Page 4 inequitable to the HOA and the other parties they are negotiating with. The motion to dismiss the HOA’s pleadings in this case must be denied. 2. The Estate’s Pleadings must be dismissed for failure to provide discovery documents. R. 4:23-2(b)(3) permits the Court to dismiss a pleading with prejudice for failure to comply with a Court Order. The Estate’s violation of R. 4:18-2 is plain. Prior submissions to the Court confirm that the HOA requested a copy of the contract which it is alleged it interfered with. The Estate failed to provide that document. The Court entered an Order on November 4, 2022 compelling production of the document. When the Estate failed to comply, the Court further Ordered dismissal without prejudice on January 6, 2023. The factual predicate for the dismissal has not changed: the Estate continues to be delinquent in its obligation to provide the documents previously requested and which it was ordered to produce. As the Court’s most recent Order advised that a motion to dismiss with prejudice may be filed if the documents are not provided by January 11, 2023, the HOA is filing the within Motion. Because the Estate has failed to comply with multiple Court Orders, the Counterclaim and Third-Party Complaint must be dismissed. 3. The Estate has not complied with the Court’s Order dated December 12, 2022. On December 12, 2022, this Court ordered the payment of fees and costs associated with the HOA’s motion to compel production of documents. To date, the Estate has not complied with the Order. Therefore, the HOA is entitled to relief under R. 1:10-3 in the form of an Order compelling the Estate’s compliance with the prior Order. BER-L-004050-22 01/12/2023 12:11:43 PM Pg 5 of 5 Trans ID: LCV2023241692 Hon. Christine A. Farrington, J.S.C. January 12, 2023 Page 5 The HOA is requesting oral argument on the Motion filed by Defendant. The Court’s courtesies are appreciated. Respectfully submitted, /s/ Jason A. Cherchia Jason A. Cherchia Encl. Cc: George Cotz, Esq. Fred Semrau, Esq. Mark Madaio, Esq. Michael Edwards, Esq. Client